Traffic Courts

Traffic courts are deeply important, but we know almost nothing about what goes on inside them. This is a problem for at least three reasons. First, traffic courts resolve over half of all cases brought into our justice system each year. Understanding how traffic courts work is thus crucial for understanding how courts themselves work. Second, traffic courts profoundly affect people’s lives. Monetary penalties from traffic court can cause people to go into debt sometimes so severe that it can take years to recover financially. Suspended driver’s licenses—another potential penalty—also have catastrophic effects on people’s livelihoods. Third, traffic courts occupy a key role in the justice system: they both sit atop our system of traffic policing and also fund state judicial branches and other state and local programs. Traffic courts enable a massive transfer of capital from motorists—disproportionately Black and Latino motorists—to the government. In short, if you care about courts, humans, or justice, you should care about traffic courts.

This Article provides the first comprehensive study of traffic courts. It makes four principal observations about their inner workings. First, traffic courts are diverse institutions—they vary by state—but some generalizations can be made. Second, traffic courts tend to be informal, lawyerless places that do not engage closely with procedural rules or other traditional indicia of legality. Third, traffic judges—often non-lawyers themselves—wield extraordinary discretion during proceedings. Fourth, traffic courts show us that our justice system is far less consistent and far more varied than we might imagine. Case outcomes rest more on lay notions of fairness than on legalistic guidance—a feature that carries the benefit of incorporating community norms into the legal system but also the risk of violating litigants’ rights.

Traffic courts also encourage us to think differently about the nature of the justice system. In particular, traffic courts present new categorical distinctions that we have not historically used to evaluate courts: between precedential and nonprecedential courts, and between more judicial and more administrative courts. This Article argues that these distinctions suggest novel ways to reform and oversee both traffic courts and the justice system more broadly.

Table of Contents Show

Introduction

Traffic courts apply the law that governs our daily lives. We use cars and roads to get to work, to visit friends and family, to take our children to school, to run errands. It is thus unsurprising that traffic cases dominate the court system. They make up approximately half of all cases filed each year,[1] and no other type of case comes close.[2] Traffic courts represent a sprawling system of law, almost entirely unexplored, that dole out justice for tens of millions of people each year. For most people, traffic courts are the justice system.

Traffic cases, while easy for some defendants to resolve quickly by paying a fine, can have devastating effects on others’ lives. Even a fifty-dollar fine is a challenge for someone who is low-income, unemployed, or unhoused. Small traffic fines become much larger ones if they go unpaid.[3] Unpaid fines can also result in arrest warrants and suspended driver’s licenses.[4] For people who rely on their cars to commute to work, a suspended driver’s license can lead to unemployment.[5] And arrests—even short detentions for unpaid fines—can be catastrophic for people with children or other caretaking responsibilities.[6]

Although traffic courts dominate the legal system, and despite their importance in our lives, they are almost entirely absent from contemporary legal scholarship.[7] This is perhaps unsurprising in an academy that has historically neglected state and local courts in favor of the higher-status federal courts,[8] but even recent research on state and local courts has excluded traffic courts.[9]

The consequence of this absence is that we know very little about the nature of the judicial system as it is experienced daily. We do not know how traffic judges reach their decisions, because their opinions are neither published nor recorded. We know nothing about the procedures traffic courts follow. We do not even know the qualifications of the judges that resolve these cases. In short, we are in the bizarre position of knowing a great deal about upper-level courts but almost nothing about the courts that make decisions immediately affecting our lives.

This Article steps into that gap. My data are novel, both quantitative and qualitative, and come from three primary sources. First, I undertook multiple fifty-state surveys of traffic courts in the United States, which provide answers to basic questions about traffic courts. The first set of questions is structural: Which courts and which judges hear traffic cases? What are the qualification requirements for those judges, and do non-judges (such as administrative hearing officers) ever hear traffic cases? The second set is substantive: What discretion do traffic judges possess to either dismiss charges or determine punishments? Second, I attended a three-day program designed to train civil traffic hearing officers in Arizona. This training put me in the position that other civil traffic hearing officers are in, educationally, and gave me a behind-the-scenes look at how traffic cases get resolved. Finally, I interviewed numerous traffic court judges and administrators about their experiences with traffic courts and about traffic law, jurisprudence, process, and administration.

From this research, I make a number of findings about the workings of these courts. First, although traffic courts are different in every state, we can still make some broad generalizations about them. Second, traffic courts are informal institutions, both legally and procedurally. They are legally informal in the sense that traffic judges often lack law degrees (and are often not even judges at all but hearing officers of some kind) and preside over largely lawyerless courtrooms. They are procedurally informal by mandate via various rules and statutes. Third, traffic judges possess large amounts of discretion over the penalties they impose. For example, judges in many states can eliminate fines and fees altogether and can decide whether to require defendants to attend traffic school, either as a substitute for or in addition to monetary fines.

I found that this informality and discretion create a decisional void that gets populated by lay ideas of fairness. The judges I spoke with talked about how they were guided by fairness, although they seemed to mean different things by that term. I argue that the many meanings of “fairness” in traffic court incorporate community-based notions of justice and injustice, making traffic courts at least somewhat representative of their communities. But I also argue that the unconstrained and unchecked nature of traffic jurisprudence can lead to abuse of the system, largely on the backs of communities of color and low-income communities.

In addition, traffic courts encourage us to think differently about the nature of the justice system. In particular, traffic courts present two new categorical distinctions that we have not historically employed in the judicial context. First, the largely doctrine-free nature of some traffic courts demands that we take seriously the differences between precedential and nonprecedential courts. Second, traffic courts implicate the distinction between more judicial and more administrative courts. These distinctions inspire novel ways to reform and oversee traffic courts and the justice system more broadly.

Aside from bringing light to these courts as their own uniquely important judicial institutions, this project contributes to two existing scholarly conversations. First, it extends the conversation about courts generally—long focused at the level of federal courts and, specifically, the Supreme Court—downward, past state supreme courts, past even state trial courts,[10] to the courts that are both the least formal and the most embedded within communities: traffic courts. Because traffic cases make up approximately half of all cases filed on an annual basis, understanding the nature of adjudication at the level of the traffic case is crucial to understanding the nature of adjudication writ large.

At the same time, this project extends the conversation about traffic stops, policing, and race from the streets into the judiciary. A robust and growing literature has chronicled the relationships between traffic stops and race.[11] Similarly, scholars have done probing work on the devastating consequences that can arise from traffic courts. In particular, scholars have examined the financial consequences of traffic court penalties and the massive debts that they can generate,[12] as well as the human and economic costs of driver’s license suspensions.[13] Another group of scholars have written about traffic safety and the law of transportation.[14] But what scholars have not examined are the institutions at the heart of all those things: the traffic courts themselves.

This Article proceeds as follows. Part I aims to convince the reader that traffic courts are worth studying. It explains the importance of traffic courts to humans, including the fines, fees, debt, and driver’s license suspensions that traffic courts can impose, and how those traffic penalties fall heaviest on communities of color. It also describes the importance of traffic courts to the justice system, both as a first line of review of interactions with traffic police and as a funding mechanism. Part II describes the results of my multi-part study, characterizing traffic courts as diverse, informal, and discretionary, as well as motivated by lay understandings of fairness. Part II describes the promise as well as the pitfalls of traffic courts: that is, the potential for incorporating local, pluralistic notions of fairness into the justice system, but also the risk that traffic courts will ignore litigants’ rights, and the concern that traffic courts are uniquely unequipped to meaningfully review our system of policing. Finally, Part III argues that traffic courts present new categorical distinctions that we have not historically used to evaluate courts and describes potential reforms inspired by these distinctions.

I. The Importance of Traffic Courts

Traffic courts govern our ability to get around, to function in society. They adjudicate traffic violations, which seek to maintain and promote public safety.[15] They are our common courts, our everyday courts. And they are deeply important in our world. During the training course that I took for new Civil Traffic Hearing Officers in Arizona, one of the first slides they showed us had this on it:

No matter what the relative importance of a case may be in terms of the entire criminal justice system, each individual case is the most important thing in the lives of the persons involved at that moment. The individual’s desire for a just decision and fair treatment can be as strong in a civil traffic case as in violent crime cases.[16]

The passage struck me, first for its humanity. I appreciated how the Arizona Administrative Office of the Courts understood that traffic courts deeply affect the people who appear in these courts. Traffic court penalties include large fees and fines, which can cause litigants to go into debt, as well as driver’s license suspensions, which can wreak havoc on people’s lives and livelihoods.

In addition, the passage contextualized traffic cases within the criminal justice system. Traffic courts play a vital role in the justice system, sitting as the first line of review for our system of policing. They provide a judicial perspective on day-to-day policework and all the economic, racial, and cultural dynamics that policework implicates. Within the overall court system, traffic courts also play an important role: They fund state court systems through the fees and fines that they collect from individuals.

This Section unpacks these two ideas. Part I.A explains how traffic courts interact with human lives by issuing monetary sanctions that can easily snowball into massive court debt and suspending drivers’ licenses, severely decreasing people’s ability to support themselves and their families. Part I.B describes how traffic courts interact with the justice system more broadly. Looking down toward the streets, they serve as a first line of review of policing and traffic enforcement tactics; looking up toward the rest of the government, they serve as an important funding mechanism for state and local court systems, as well as other governmental programs.

But first, some traffic court basics. I use the term “traffic court” because that is the term that many courts themselves use.[17] But traffic courts are actually a part of larger court systems.[18] As a general matter, traffic courts exist as a subdivision of a state’s limited jurisdiction courts, which are trial courts that only hear certain types of claims (generally limited by subject matter, stakes, or claim amount).[19] In states with consolidated justice systems—that is, states whose trial courts are all one type—traffic cases are heard by a subdivision of the state’s general jurisdiction trial court (general jurisdiction courts are state trial courts that hear all cases).[20] For example, Alabama has both general jurisdiction trial courts (called Circuit courts) and three kinds of limited jurisdiction trial courts (called Municipal, Probate, and District courts).[21] Both Municipal and District courts in Alabama hear traffic cases.[22] California, on the other hand, has one type of trial court (called superior courts),[23] which hears all cases, including traffic cases.[24] Few states have consolidated court systems,[25] so in most states, traffic cases are heard in limited jurisdiction courts like municipal courts, city courts, or justice courts.

When we talk about traffic cases, we are in general talking about violations of a state’s motor vehicle laws. These are largely non-criminal violations of state traffic laws, like speeding laws and proof of insurance laws.[26] They also include a small number of violations of local ordinances and of traffic-related criminal laws, like driving under the influence (DUI). As an example, in Arizona, 86.5% of traffic cases in 2021 were civil traffic violations of the state code, 11.5% were criminal traffic cases, mostly DUIs, and 1.9% were violations of local parking ordinances.[27]

The total number of these cases in the justice system is simply vast. The National Center for State Courts (NCSC) collects data on state case filings, and although not every state reports its case numbers, NCSC provides national estimates. NCSC estimates that in 2021, there were 63.3 million cases filed in state courts around the country.[28] Of those, NCSC estimates that 47%, or 29.9 million cases, were traffic cases.[29] (By contrast, 421,860 cases were filed in federal court in 2021, total.)[30] In 2021, the second most common type of case was criminal, with 24% of the total cases filed, and then civil, with 21%. Domestic relations cases made up 6% of the total cases filed and juvenile delinquency cases came in at 1%.[31]

The dominance of traffic cases is largely present at a state-by-state level as well. Thirty-four states provided publicly available case information that identifies the number of traffic cases filed in 2021.[32] In those states, the proportion of traffic cases ranged from 8.9% of the total number of incoming cases filed (Massachusetts)[33] to 76.8% of all cases filed (New Jersey).[34] In most of the states with available data (twenty out of thirty-four), traffic cases represented somewhere between 40% and 60% of total cases.[35] Adding up the data from all of the thirty-four states that provide these numbers, traffic cases represented 25.4 million cases out of 50.7 million total filed, or 50.2%.[36]

These proportions are consistent over time, as well. NCSC estimates that in 2020, 60.2 million cases were filed in state courts around the country.[37] Of those, NCSC estimates that 47%, or 28.5 million cases, were traffic cases.[38] In 2019, the proportion of traffic cases was 51% of the total, 53% in 2018, 53% in 2017, and 53% in 2016.[39]

Not only are there far more traffic cases than any other kind of case overall, but there are also far more traffic cases that are resolved at trial than any other type of case. Using California as an example, in fiscal year 2019–2020, 66% of all trials heard by courts in the state were traffic cases: there were 3,189 criminal felony trials,[40] 1,627 criminal misdemeanor trials,[41] 116,399 civil trials (most of which were small claims cases),[42] and 234,100 traffic law trials (the vast majority of which were traffic infractions, with a small number of traffic misdemeanors).[43]

In sum, traffic cases, which are largely civil, make up approximately half of all cases filed each year in state courts. In turn, these cases make up most of the cases filed in all courts, including federal.

A.   To the People

The sheer number of cases resolved by traffic courts justifies interest in these institutions. But there are other reasons to care. Human reasons. One person I spoke with told me the story of a young man with multiple traffic violations who repeatedly missed his court dates. His debt ballooned to over a thousand dollars. It turned out that this young man had significant family responsibilities that made it hard for him to find time to attend traffic court. The debts he accrued would likely take months—if not years—to pay down.[44]

This is just one story; others have documented more. A man making regular payments on some traffic ticket penalties had to stop because he quit his job to care for his two-year-old, who was diagnosed with leukemia. The traffic court suspended his license and would not hear his case until he paid off the remainder of his fines and fees, which he was unable to do. “Without a license, I can’t work,” he said. “Without work, I can’t pay my fines to get my license back.”[45] A woman received a ticket of $400 for driving without insurance, and although she was repaying it, the state suspended her driver’s license. She was not able to pay the additional fines the court imposed, so her license remained suspended, forcing her to take buses to get around despite health concerns that made it dangerous for her to be exposed to heat.[46] Another man, who assisted with care for his special needs brother, could not pay the $4,300 that he owed in traffic fines and fees and did not qualify for a repayment plan because he could not afford to pay 25% of the penalties up front. He was arrested for failing to pay, spent twenty-four days in jail, and lost his job as a result.[47]

As these stories demonstrate, the penalties that traffic courts impose can have major consequences. This Section describes those penalties and their consequences. Many penalties are monetary fines and fees, but courts in many states may also suspend driver’s licenses and issue arrest warrants. Although some monetary penalties are modest, many are not, and they can work in concert with license suspensions to create crushing debt. And because enforcement officers issue traffic tickets disproportionately to low-income people of color, traffic court debt and license suspensions affect low-income communities of color especially.[48]

Fines and fees are the monetary sanctions that traffic courts issue when someone violates a traffic law. The fine is the penalty for the infraction. The fee is an additional penalty courts impose to fund the functioning of the court system itself, among other things.[49] Fees can be quite large in comparison to fines. In California until 2022, for example, a $100 base fine would be paired with $390 in fees for a total penalty of $490.[50]

These fines and fees can snowball into massive debt with just a few missed payments or failures to appear at court. Once a defendant cannot or does not pay the initial penalty, traffic courts increase the penalty, which in many states includes interest payments and repayment or collection costs.[51] In California, a single failure to appear at a hearing results in $325 in additional fines and fees, resulting in a penalty of $815 for a base fine of $100.[52] Even California’s former governor conceded that California’s system of fines and fees created “a hellhole of desperation” for residents.[53]

If the defendant continues not to pay or appear in court when directed to, things get worse. The case can become criminal if the traffic court issues an arrest warrant. As Martha Minow has noted, “[T]he risk of jail time due to unpaid civil fines and fees blurs the distinction between civil and criminal law. Debtors’ prison is supposed to be banned in the United States, but in practice, an inability to pay fees results in loss of liberty for thousands of people.”[54] In short, these penalties can increase into the thousands with very few missed steps and into the tens and hundreds of thousands over the course of months and years.[55] And these penalties can easily slip into the realm of criminality, dramatically altering a person’s life.

In most states, traffic judges are also empowered to suspend driver’s licenses, either as a direct penalty for a traffic offense or as a penalty for failing to pay the monetary sanction or appear in court. This is not true in every state, in part because of a reform movement that seeks to prohibit license suspensions as a traffic court penalty.[56] Some states have enacted “free to drive” laws, which prevent courts from suspending driver’s licenses in some circumstances. Other states no longer suspend driver’s licenses as a penalty for failing to pay traffic penalties on time.[57] Most states, however, still permit driver’s license suspensions as a penalty for failing to appear for a court appointment.[58]

Traffic courts that suspend driver’s licenses as punishment catastrophically affect people’s lives. Many individuals who lose their licenses also “lose their jobs or struggle with limited employment options. Curtailed driving privileges interfere with regular medical care. Those who depend solely on public transportation also face limited housing options because of limited public transportation infrastructure.”[59] One study out of New Jersey found that 42% of people whose license was suspended lost their job, and only 45% of those people were ultimately able to find new work.[60] Another study, out of California, found that only a small percentage of people whose licenses are suspended actually have their licenses reinstated: from 2006 to 2013, this report found that only 69,906 (or 1.6%) of the 4,289,995 revoked licenses were reinstated.[61] As of 2015, “over 4 million people, or more than 17% of adult Californians, [had] suspended licenses for a failure to appear [in court] or pay.”[62]

As is the case with traffic court debt, driver’s license suspensions create exposure to potential criminal sanctions. Traffic court penalties “expedite[] formal contact with the criminal justice system by criminalizing one’s inability to pay or appear and one’s need to drive with a suspended license.”[63]

Monetary penalties and license suspensions work in concert to make life impossible. For many, the interplay between these two sanctions become a one-way road to poverty:

[A] litany of practices and policies turn a citation offense into a poverty sentence: the revenue incentives of fine collection lead to increased citation enforcement, add-on fees for minor offenses double or quadruple the original fine, and people who fail to pay because they don’t have the money lose their driver’s licenses. Once an initial deadline is missed, courts routinely deny people the right to a hearing unless they can afford the total amount owed up front, and payment in full becomes the sole means for having a license reinstated.[64]

This sequence of events can easily drive a person into bankruptcy.[65] As one exposé on traffic court debt in Chicago found, “[f]or Chicago’s working poor, and particularly for African Americans, a single unpaid parking or automated traffic camera ticket can quickly spiral out of control and threaten their livelihoods. Bankruptcy offers a temporary reprieve, giving these motorists the chance to resume driving without fear of getting pulled over or losing their vehicles to the city pound.”[66] Furthermore, some cities will not hire people who are in debt to the city, which makes finding employment even more challenging.[67]

   As that exposé suggests, the human costs of traffic courts are not distributed equally; the burdens of traffic court debt fall most heavily on communities of color. As Veryl Pow writes, “[T]raffic court debt is a statewide system with identifiable steps along a pathway that maintains a cycle of indebtedness and criminalization of low-income people of color.”[68] The penal consequences of traffic courts fall heavily on communities of color because traffic is policed most stringently in neighborhoods of color.[69] One Washington Post study found that, of traffic tickets issued in the District of Columbia from 2016 through 2020,

62 percent of all the fines from automated systems and D.C. police — $467 million — were issued in neighborhoods where Black residents make up at least 70 percent of the population and where the average median household income is below $50,000. In overwhelmingly White and financially well-off census tracts, where average median household income levels are above $100,000, the city issued about $95.9 million in infractions.[70]

In addition, “the average annual fines of $7.6 million in parking tickets issued in Black neighborhoods were nearly double compared with the $4.1 million in White neighborhoods — even though census data indicates predominantly Black neighborhoods have less than a third of the city’s driving-age residents.”[71] A ProPublica story on ticket debt in Chicago found that “[e]ight of the 10 ZIP codes with the most accumulated ticket debt per adult are majority black, according to a ProPublica Illinois analysis of ticket data since 2007 and figures from the U.S. Census.”[72] Those majority-Black neighborhoods “account for 40 percent of all debt, though they account for only 22 percent of all the tickets issued in the city over the past decade.”[73]

Driver’s license suspensions are also concentrated among communities of color and low-income communities. One empirical study found that “the population of white people below the poverty line and black people above the poverty line are most strongly associated with more suspensions.”[74] Other studies have found that zip codes representing low-income communities of color tend to experience higher rates of license suspensions.[75] Still more studies show disproportionate rates of drivers’ license suspensions among Black drivers in New York, California, Virginia, Wisconsin, and Florida.[76]

B.   To the Justice System

In addition to the role that traffic courts play in people’s lives, traffic courts also play important institutional roles. Traffic courts sit atop all the economic, racial, and cultural dynamics implicated by policing and traffic stops. In doing so, they provide an implicit judicial imprimatur of traffic policing. At the same time, through the fees and fines that they collect from defendants, traffic courts fund many state and local governmental institutions. Traffic courts therefore play an outsized role in the justice system writ large: both as a judicial (though largely non-effectual) review of traffic policing and as a funding mechanism for other parts of the justice system and government.

Traffic stops—which precipitate appearances in traffic court—are common. As Baumgartner, Epp, and Shoub have noted, “[T]raffic stops are the most common type of encounter that Americans have with the police.”[77] And traffic stops are problematic. Multiple reports have found that on average, Black motorists are more likely to be stopped by police than White motorists.[78] Other reports have found that once stopped, Black motorists are more likely to receive traffic tickets than White motorists.[79] These findings have been replicated in numerous states[80] and are true for motorists of Latin American descent as well.[81] The scholarly and advocacy literature on traffic stops and race is legion.[82]

Traffic judges see the result of this bias in the defendants who appear before them. And although traffic courts address the traffic tickets that are issued in these stops (and not the appropriateness of the traffic stop itself) in resolving the traffic cases before them, they implicitly bless the methods that police use to generate those cases. At the very least, they are the primary judicial line of review of these stops.

Traffic courts play a role in another, complementary dynamic: traffic fines are an important source of funding for various forms of state and local government. As one person I spoke with in Arizona said, traffic fines and fees comprise the largest single source of funding for the Arizona court system. And this is not exceptional to Arizona.

Traffic fines and fees fund the judicial branch—and more—in many states. In California, for example, the $390 in fees that was tacked onto a base fine of $100 funded a number of state programs, including “a $40 court operations fee; a $35 criminal conviction fee; a $4 emergency medical air transportation penalty; a $1 night court fee; and, a $310 penalty assessment and surcharge . . . [that] fund[ed] eight different state programs, including the Fish and Game Preservation Fund, the Office of Emergency Services, and the Traumatic Brain Injury Fund.”[83] New Jersey similarly uses traffic tickets to fund a wide variety of state priorities.[84] New York state’s fees directly pad its general revenue.[85]

This system puts traffic courts in the position of trying cases that quite often fund the very courts that hear them. In at least some instances, that arrangement provides perverse incentives to judges to maximize fines and fees.[86] Other reports have found that using traffic tickets to fund local or municipal governments has encouraged police to issue tickets in greater numbers than they might otherwise.[87]

Traffic courts thus sit directly in the center of a system that, at its worst, preys on low-income communities of color to fund various governmental programs, and at its best, still represents a massive transfer of capital from motorists—disproportionately from Black and Latino motorists—to the justice system. And yet, in part because of the nature of the judicial system itself, traffic courts do not engage with this larger legal system or the inequalities that arise from it. As I will discuss in Part III, traffic judges are not equipped to engage with these broader policy and legal concerns.

II. Inside Traffic Courts

Traffic courts thus connect two well-studied phenomena: the practice of issuing traffic tickets and the effects of traffic court penalties. But what happens inside traffic courts is something of a black box. This Section begins to describe the law and practice inside of traffic courts. It distills data collected from both quantitative and qualitative sources to describe four characteristics of traffic courts: their diversity, informality, discretion, and fairness.

To research the functioning of traffic courts in a way that creates a thorough picture of the institution while acknowledging its diversity and complexity, I used a mixed-method—both quantitative and qualitative—approach.[88] First, I chose two sets of questions—one institutional and one substantive—and, with the help of research assistants, answered them via fifty-state surveys. These surveys provided foundational information about traffic court functioning. The first set of questions surveyed the nature of the traffic court adjudicator: who resolves traffic cases? State judges or someone else? And what are their qualification requirements? The second set of questions surveyed the discretion that traffic judges possess to impose, alter, or suspend monetary and other penalties, including requirements that defendants attend traffic school.[89]

Second, I chose one state’s traffic courts—Arizona’s—for a deeper case study. In Arizona, I observed traffic courts in action and interviewed ten Arizona traffic judges.[90] I asked questions that probed the educational background of the judges, their range of experience as judges, their approach to judging, their experience with racial issues in court, the legal sources they rely upon, and their exercise of discretion in decision-making.[91] To get an even deeper understanding of the inner workings of traffic courts, I also completed a three-day Civil Traffic Court Hearing Officer training, which is the training that all traffic hearing officers must complete before hearing traffic cases. Through that class, I spoke informally with traffic judges and administrators (separate from my more formalized judge interviews) and saw what traffic case resolution looked like from the inside.

In this Section, I characterize the results of my research. In Part II.A, I describe how diverse traffic courts can be across states but argue that their diversity does not make it impossible to draw cross-state conclusions. In Part II.B, I describe both the legal and the procedural informality present in traffic courts: legal because traffic courts are largely lawyerless and procedural because of state statutes and court rules that often explicitly require procedural informality. In Part II.C, I describe how traffic courts are, in large part, discretionary courts. Traffic judges are largely unconstrained by case law and instead possess large amounts of statutory discretion to shape traffic penalties. Finally, in Part II.D, I describe the many forms of fairness that animate the informal and discretionary decision-making that takes place in traffic courts.

A.   Diversity

The superior court building in Santa Barbara, California is all arches. Wooden doors carved with complex designs, mesa-style ceramic floor tiles. Outside there are palm trees and cut grass. People resolve their traffic cases there. They also hold their weddings there.[92]

Fly to the state next door, and traffic courts look different. The Justice Court—which resolves traffic cases as well as other, small civil cases—in rural Kayenta, Arizona, is a few miles down the highway from the city center. It is a small, simple, pale, four-sided building with minimal signage surrounded by an unpaved parking lot, a chain-link fence, an American flag, and not much else.[93]

This physical diversity reflects diversity within. Like most highly decentralized institutions, traffic courts operate differently between states, and sometimes operate differently even within states.[94] State court systems differ from one another in multiple ways: they have different court organizations, different procedural rules, and different substantive law. This diversity is a methodological challenge for descriptive work on local institutions.

Traffic courts, although common along some dimensions in many states, do not all operate the same. Traffic courts in California and Arizona, as an example, differ in important, structural ways. California has consolidated its judicial system, so its superior courts resolve all trial-level matters, including traffic cases.[95] Arizona, by contrast, operates both general jurisdiction and limited jurisdiction trial courts (with different operating procedures and judge qualifications for each), and only the limited jurisdiction courts—including municipal courts and justice of the peace courts—resolve traffic cases.[96] There are other differences as well. California judges must possess law degrees;[97] Arizona judges who resolve traffic cases need not be lawyers.[98] Trial procedure in traffic cases in Arizona is informal;[99] less so in California.[100]

There are similarities, too. Traffic law in both Arizona and California is a mix of civil and criminal matters.[101] Both California and Arizona permit non-judges to resolve traffic cases: California law allows “subordinate judicial officers” appointed by the court, like a traffic referee or commissioner, to hear traffic infractions;[102] in Arizona, Civil Traffic Hearing Officers appointed by the state can resolve traffic cases.[103]

Inevitably, given the decentralized nature of traffic courts, each fifty-state survey exists along a spectrum of diversity and variability. This does not mean that it is impossible to draw conclusions about traffic courts; rather, it is important to recognize how often states diverge and how widespread a commonality is in order to determine how broad a conclusion it is possible to draw from the data.

B.   Informality

In general, traffic courts are informal courts. This is true in two primary ways. First, traffic courts are legally informal. They are largely lawyerless courts.[104] Defendants rarely bring counsel; prosecutors almost never attend. Many states permit non-lawyers to judge traffic cases, so traffic court judges themselves are often not lawyers. In fact, many states permit non-judges—like hearing officers and administrative officers—to resolve traffic cases. Because of the non-legal nature of the parties and decision-maker, traffic court proceedings take a more informal, nonlegal tone. Second, many states legally require procedural informality in traffic court via statutes and court rules that require informality broadly, eliminate rules of evidence for traffic proceedings, or set other specific procedures that encourage informality.

1.   Legal Informality

Over and over, the traffic judges and hearing officers I spoke with told me that traffic court was informal. Traffic court is not “strictly by the rule,” one judge told me, “There’s some leeway there.”[105] Informality occurs in part because of a lack of legal training by the parties to the case but may also occur because of a lack of legal training on the part of the judges themselves.

Traffic courts are often lawyerless places. The judges and administrators I spoke with in Arizona reported that defendants rarely bring lawyers in to defend them—they defend themselves. The only real exception was commercial truckers, who are regularly represented by counsel that their companies provide.[106] One hearing officer, who had been hearing traffic cases for thirty years, estimated that under ten percent of non-commercial truckers were represented in traffic court.[107] And when defendants are self-represented, prosecutors also decline to attend the hearing; instead, police officers are the sole representation of the state.[108] Another hearing officer I spoke with said that he had never seen a prosecutor in all of his years hearing traffic cases.[109]

Arizona judges and hearing officers I interviewed explicitly linked the absence of lawyers to a more informal atmosphere.[110] Perhaps unsurprisingly, pro se defendants rarely make traditionally legal arguments, like statutory interpretation arguments or arguments from case law. Instead, they make arguments that sound normal in everyday life. According to these judges, defendants commonly sought exceptions to the statutes they allegedly violated. “I just zipped in and out of the [high-occupancy vehicle] lane,” is one example; citing the fact that others on the road were driving even faster is another.[111] Claims of ignorance of the law are also common,[112] as are outright disputes of fact (“I didn’t do it”), either with or without supporting evidence.[113] One judge noted that defendants do not make legally helpful arguments because they “don’t know what the judge is trying to decide.”[114] They do not understand the burden of proof or that only relevant evidence can rebut the officer’s own attempts to satisfy the burden.[115]

Partly for this reason, the traffic judges I spoke with did not see themselves as legal analysts but rather as finders of fact.[116] Every judge I spoke with except one said that they never consulted case law in hearing traffic cases. The one exception did so only if a party raised case law first—which only happens in the rare case that a defendant is represented by counsel.[117]

Furthermore, as one traffic practitioner noted, defendants are unlikely to raise case law arguments because there is very little traffic case law from appellate courts.[118] These cases are rarely appealed,[119] and even if they are appealed to the general jurisdiction court, there are no further appeals to the court of appeals available.[120]

Not only is it true that traffic courts rarely see lawyers as advocates, but traffic judges themselves are also often not lawyers. Sara Sternberg Greene and Kristen Renberg conducted a survey of lay judging in all fifty states plus the District of Columbia and found that thirty-two states do not require judges in the most common courts to have law degrees.[121]

In states that permit lay judging, judges commonly lack law degrees. In Arizona, for example, where justices of the peace (who hear traffic cases as well as other, lower-monetary-stakes cases) need not have law degrees,[122] a 2010 study found that approximately two-thirds of those judges did not, in fact, have law degrees.[123] A New York Times survey of 1,250 town and village courts in New York similarly found that “[n]early three-quarters of the judges [were] not lawyers, and many—truck drivers, sewer workers or laborers—[had] scant grasp of the most basic legal principles.”[124]

And again, while more work needs to be done on lay judging, the work that exists suggests that lay judges are less picky about legal constraints than lawyer judges. As I have written in earlier work,[125] anecdotal and empirical evidence “indicate that lay justices are prone to ignoring the law.”[126] The New York Times survey noted that in New York, “[m]any do not know or seem to care what the law is.”[127] One local court judge in Dannemora, New York, stated: “I just follow my own common sense. . . . And the hell with the law.”[128]

To be clear, all of the judges and hearing officers I spoke with in Arizona took their jobs extremely seriously. The nonlawyer judges and hearing officers I spoke with answered my questions thoughtfully and communicated a genuine desire to conduct themselves fairly and reasonably in court. That said, their status as non-lawyers seemed significant to them. One non-lawyer hearing officer I spoke with said that they never engaged with case law because they were “not a lawyer.”[129] Another non-lawyer hearing officer noted mild concern that a lawyer for a defendant might know more law than he did.[130]

Even among the states that do not generally permit non-lawyer judges, some permit lay judges solely for the practice of resolving traffic cases. In Colorado, for example, presiding county judges may appoint county court magistrates to resolve county cases. Generally, a magistrate must be “a qualified attorney-at-law admitted to practice in the state of Colorado and in good standing.”[131] But a magistrate who only hears minor traffic infractions need not be an attorney.[132]

Traffic courts are not just presided over by lay judges; in many states, those who resolve traffic cases are not judges at all but administrative adjudicators of various kinds. I canvassed all fifty states to determine which states permitted non-judge adjudicators and what the qualifications were for those non-judge adjudicators. What I found is that twenty-three states permit non-judges to resolve traffic cases. Some of these non-judges are “magistrates” or “clerk magistrates” who are appointed by local judicial or administrative officers and hear more than just traffic cases.[133] In Alaska, for example, presiding judges of superior courts appoint magistrates, who serve at the pleasure of that presiding judge.[134] Those magistrates then have jurisdiction over a limited set of cases, including civil matters with low monetary stakes and minor offenses and infractions, like traffic cases.[135] Other examples include magistrates in Iowa,[136] North Dakota,[137] and South Dakota.[138]

Other kinds of non-judges work solely on traffic cases. In Florida, for example, “hearing officers” are independent contractors that serve at the pleasure of the chief judge[139] and are empowered to “decide the guilt or innocence of any person, adult or juvenile, charged with any civil traffic infraction.”[140] In Ohio municipal and county courts, “magistrates” are appointed by the court “for the purpose of receiving pleas, determining guilt or innocence, receiving statements in explanation and in mitigation of sentence, and recommending penalty to be imposed” in traffic cases.[141] California law allows “subordinate judicial officers” appointed by the court, like a traffic referee or commissioner, to hear traffic infractions.[142] In Arizona, Civil Traffic Hearing Officers may be appointed by cities, towns, and justice courts.[143]

The status of Arizona Civil Traffic Hearing Officers as hearing officers, rather than judges, seemed significant to the hearing officers I spoke with. Although they saw their role as resolving the very same cases that the judges resolved, they communicated admiration for and meaningful mentorship by those judges. One hearing officer I spoke with expressed appreciation that his supervising judge occasionally sat in on his hearings and hoped that supervising judges would provide even more supervision in the form of spot checks or surprise sit-ins.[144] Another expressed that he sought to adjudicate his cases in a way that would “stand up under an appeal—or simply a performance audit/review by a supervising judge.”[145]

In sum, traffic courts are legally informal because the personnel that fill them have no reason to understand legal formalities. This does not mean that what happens inside traffic court is not quite serious, with real consequences—just that what happens within traffic court transpires in a language unlike the one we are used to hearing in court.

2.   Procedural Informality

Traffic courts demonstrate procedural informality as well. In many states, procedures for traffic cases are legally distinct from non-traffic cases. Rules specific to traffic cases set out intentionally simpler procedures.[146]

Surveying the procedural rules in traffic courts in most states, I identified two primary forms of informality. First, and most commonly, some states explicitly require traffic hearings to be “informal,” without providing more detail. In Arizona, for example, traffic hearings are “informal and without a jury.”[147] Hawai’i’s Civil Traffic Rules state that “[t]he procedure for all [traffic infraction] hearings shall be informal. A prosecutor will not be present and witnesses will not be required.”[148] Colorado’s Rules for Traffic Infractions “apply concepts of both civil and criminal law, as deemed appropriate, to establish informal hearing procedures in the county courts.”[149] Colorado favors “basic notions of fairness” over complex procedures and rules of evidence.[150] Florida prohibits traffic hearing officers from wearing robes because “the wearing of robes might . . . interfere with the informal setting of the hearings.”[151]

Second, some states specifically eliminate certain procedural rules in traffic hearings. In Massachusetts, for example, “the rules of evidence shall not apply” in hearings on civil motor vehicle infractions.[152] In Michigan, traffic judges “shall conduct the informal hearing in an informal manner so as to do substantial justice according to the rules of substantive law but shall not be bound by the statutory provisions or rules of practice, procedure, pleading, or evidence, except provisions relating to privileged communications.”[153] And in Arizona, “[t]echnical rules of evidence do not apply, except for statutory provisions relating to privileged communications.”[154]

So while some traffic court informality results from the legal informality of the parties, some results from statutory- and rules-based mandates. This informality may give rise to what others have called ad hoc procedure[155] or procedural norms.[156] As I discuss below, in the context of traffic courts, it creates an opening that traffic judges tend to fill with decisions reflecting lay forms of fairness.

C.  Discretion

Traffic judges possess abundant discretion over the outcomes of their judgments. In the words of one traffic judge, traffic judges have “an awful lot of leeway.”[157] Deciding on the outcome of the case is one of the most important parts of a traffic judge’s job. Unsurprisingly, states empower traffic judges to make those decisions in different ways. But a core similarity is that traffic judges in most states have statutorily granted flexibility to craft the fine they feel is appropriate.

Once a traffic judge determines that a party is legally responsible for the traffic violation, they must decide on the fine to be applied. A small number of states provide strict statutory fines for traffic judges to apply.[158] Other states provide either statutory fine ranges[159] or statutory maximums[160] and task traffic judges with choosing a penalty within the range or no greater than the maximum.

Many states provide traffic judges with even more discretion, however, by permitting them to lower the fines beyond statutory minimums or eliminate them altogether. A number of states permit traffic judges to suspend penalties if the penalty would be a financial hardship for the defendant to pay. Arizona, for example, permits judges to “mitigate or waive any civil penalty that is required . . . if the person who is ordered to pay the penalty demonstrates that the payment would be a hardship on the person or on the person’s immediate family.”[161] Many other states simply provide blanket authority to waive penalties. Washington state law, for example, provides that “[t]he court may waive or remit any monetary penalty, fee, cost, assessment, or other monetary obligation associated with a traffic infraction.”[162] Nearly half of all states provide their traffic judges with the discretion to either waive traffic penalties altogether or provide an alternative, non-monetary penalty, like community service.[163]

Traffic judges in most states have another discretionary tool at their disposal: the ability to assign traffic school to defendants, either in addition to or in lieu of monetary penalties. Thirty-two states permit traffic judges to assign traffic school as a penalty for a traffic violation.[164] Twenty-one of those states permit traffic judges to assign traffic school as a substitute for a monetary penalty.[165] In Indiana, for example, enrollment in traffic school can replace part of a monetary fine.[166] In Arizona, judges must offer the option of traffic school (called “defensive driving school” in Arizona) if the defendant is charged with certain violations, and they may offer the option of defensive driving school to a defendant with more serious charges.[167] Completing defensive driving school discharges the initial charge.[168]

What is key, however, is that states provide little guidance to judges in exercising their discretion. Though some states do mention driving history,[169] most states simply provide penalty ranges and leave it to the individual traffic judges to determine. Others provide vague guidance, like that “the trial court may reduce or eliminate the award in the interest of justice.”[170] This lack of guidance exists with respect to a judge’s decision to assign traffic school as well. Arizona’s statutory scheme, for example, simply says that the traffic judge may assign traffic school in lieu of a monetary penalty but says nothing about how or why judges should make that decision.

In addition to substantive discretion over the penalty, traffic judges enjoy procedural discretion over the proceedings. The procedural informality previously described[171] provides a space for traffic judges to conduct their hearings as they like. The judges I spoke with noted this discretion especially in the context of dealing with pro se litigants—and specifically the hearing officer’s own attempts to make pro se defendants comfortable in the process.[172] Hearing officers will guide pro se defendants through the process[173] and will also take a more active role in drawing out the factual evidence.[174] Carpenter, Shanahan, Steinberg, and Mark have described a similar procedural discretion in the context of lawyerless state civil courts more broadly. They found:

As a matter of law, American civil trial judges generally have the discretion to accommodate and assist pro se litigants, including waiving procedural technicalities if they choose. In most jurisdictions, formal law offers little beyond this broad and vague authorization. As a result, most judges cannot look to formal law to identify the permissible bounds of any assistance they might offer.[175]

In sum, traffic judges in most states have some explicit form of discretion over both the procedure and the substance of the cases that come before them.[176] This discretion opens a space that traffic judges must fill with their personal judgment, which I discuss in the next Section.

D.  Forms of Fairness

There is a show called Caught in Providence, featuring a man named Frank Caprio, that highlights cases he hears as Chief Municipal Judge in Providence, Rhode Island. Although he is not exclusively a traffic judge, many of the cases the judge hears are traffic related. Despite the gotcha-style title, the show is kindhearted and highlights cases where he solves problems in compassionate and creative ways. Judge Caprio is an empathetic, older man who listens to the people who appear before him. The show has produced a number of viral videos featuring traffic adjudication[177]—no small feat—including one particularly heartwarming clip where a ninety-six-year-old man was ticketed for speeding while driving his sixty-year-old son to get medical care for cancer.[178] Addressing the tearful defendant, Judge Caprio wished the best of health to him and his son and dismissed the charge.[179]

Judge Caprio doesn’t seem to consult statute books or case law; he does what he thinks is right. In an interview, he said: “I think I should take into consideration whether somebody is sick and whether their mother died and whether they have kids who are starving . . . I don’t wear a badge under my robe. I wear a heart under my robe.”[180]

The show thus illustrates the dynamics described above: informality and discretion. But it also illustrates the ways in which those dynamics create a decision-making gap: informality and discretion mean that traffic judges have wide leeway to choose the basis for their decision-making. That decision-making is the basis for the justice, or the injustice, that traffic courts impart.

To understand this gap, I asked the traffic judges I interviewed how they exercised their discretion. The answers I got were varied, but what I found was that the predominant value that these judges use in making decisions—both procedural and substantive—is simply fairness. “Being fair is the number one thing,” one hearing officer told me.[181] Another said that “[t]rying to be fair is the philosophy.”[182] Carpenter, Shanahan, Steinberg, and Mark made resonant findings in their conversations with other local court judges, noting that when they “asked judges how they think about and approach their role in pro se cases, they described fairness as their touchstone principle . . . a finding consistent with previous research.”[183] One judge they interviewed told them: “I did look at the canons, but I did not find that it was helpful. I developed a ‘smell test.’”[184]

As I learned, however, fairness is a capacious term that means different things to different judges.[185] The predominant understanding of fairness amongst the judges I spoke with seemed to mean something akin to procedural fairness, or providing the chance to be heard.[186] One judge put it like this:

I always try to conduct hearings that would stand up under an appeal—or simply a performance audit/review by a supervising judge—as having been conducted with fairness and professionalism, and that were procedurally correct under applicable laws and court rules. My goal in any hearing is that both the prevailing and non-prevailing parties will walk away feeling that the hearing was fair, that they were heard, and that they believe that the judgment rendered was reasonable, even if it was not the outcome the party desired.[187]

Another judge said that she has learned to speak simply and “[w]ants [the defendants] to feel that they didn’t just walk in and get spit out.”[188] A third judge felt he had “leeway to help the defendant ask the right questions . . . [and] [a]ssist the defendants with procedure.”[189]

I heard other forms of fairness described as well. When I asked judges how they exercised their discretion to raise or lower monetary penalties, I got a variety of answers that all broadly sounded in ideas of fairness.

One judge described a form of fairness as consistency or equality. She said that she tried to maintain uniformity of penalties across defendants—and because so many defendants simply paid the penalties without providing explanations, she was resistant to providing penalty reductions just because a defendant pled their case in court. Another judge similarly stated that he would consider whether the alleged violation was in line with other violations he had seen, and if it was unduly harsh (for driving just barely over the speed limit, for example), he would dismiss.[190]

Other judges described a form of distributive fairness. Multiple judges said that they would reduce a single penalty if they found it would be a financial hardship.[191] One said that he would reduce penalties if the defendant was found responsible for multiple charges, and the potential penalty was, according to the judge, excessively high.[192] If someone came in with three violations, he would eliminate one, convert a second to a town code violation, which does not count against insurance points, and leave the remaining violation intact.[193]

Some judges described something akin to fairness as benefits for good behavior. If the defendant was well-behaved in court, presented well, and asked for a reduction in fine politely, these judges were likely to reduce the fine. “The way they present themselves is monumental,” one judge said, who also did not appreciate argumentative defendants, “[b]ut if someone is honest, and asks the court to take their driving record into account, [the judge was] likely to give them a break.”[194]

Still other judges described a form of situational or fact-dependent fairness. One said that she looked for mitigating and aggravating circumstances in the facts of the case, like driving with a passenger who was in labor, that would allow her to reduce the defendant’s penalty. Another mentioned that a medical emergency might justify reducing the penalty.[195]

Three observations about these forms of fairness. First, they are mostly reasonable and principled approaches to discretion, and they are not necessarily exclusive. In fact, I suspect that most of the judges I spoke with would agree with a good number of these approaches. Nevertheless, each judge had their preferred approach, and each was free to choose that approach—and, indeed, needed to choose some approach—to fill in the discretionary and procedural gaps left by the rules of traffic court.

Second, these are lay ideas of fairness. Except for distributive fairness, which in Arizona is guided by statute,[196] the rest of these forms of fairness are personal, judgment-based, and self-created. They do not derive from case law—indeed, case law was largely absent from any aspect of decision-making in traffic court that I observed—statutory law, constitutional law, court rules, or even standardized cultural norms.

Third, there is no real check on the type of fairness that a traffic court judge uses. Traffic opinions are not written. They may be appealed, but as I describe in more depth below,[197] the appeals rate from traffic court is miniscule. Only one of the traffic judges I spoke with had even heard of a traffic case being appealed at all, and only because it happened to be one of his cases.

Decision-making in traffic courts is thus both deeply suffused with the personal value systems of individual traffic judges and largely unconstrained.

III. Traffic Courts and Justice

Traffic courts are thus the most common way that individuals will come into contact with the judiciary, but they also present a very different kind of judicial experience from what we often imagine. We think of our judicial system as a common law system that values and follows doctrinal and constitutional precedent, but we have good reason to believe that in half the cases around the country, those legal sources are largely irrelevant. We think of our judicial system as one populated by lawyers who fastidiously follow procedural and substantive legal rules, but we have good reason to think that many courts lack lawyers of any kind and proceed far more informally than we imagined. Traffic courts violate our expectations in multiple ways.

What should we make of these violations of expectations? I suggest two things. First, as described in Part III.A, the justice system is far less consistent and far more pluralist than we imagine. An emphasis on fairness carries the benefit of incorporating community and democratic norms into the legal system, but it also carries the risk of ignoring litigants’ rights. The informal and non-legal quality of traffic courts makes them uniquely unsuited to resolving the larger issues that plague the justice system.

Second, as described in Part III.B, traffic courts encourage us to think in different terms about the nature of the justice system. In particular, traffic courts present two new categorical distinctions that we have not historically used to evaluate courts. First, traffic courts suggest that we take seriously the differences between precedential and nonprecedential courts. Second, traffic courts suggest that we consider the difference between more judicial and more administrative courts. I argue that these novel distinctions suggest novel ways to reform and oversee traffic courts and the justice system more broadly—especially in ways that maximize the benefits of traffic courts and minimize their potential harms—and I describe those potential reforms.

A.   Justice and Injustice

Traffic courts present a version of a familiar problem: assessing and balancing the benefits and drawbacks of deep decentralization. As highly local institutions, traffic courts have the benefit of being close to the communities they serve. Their judges come from those communities and understand the specific problems and opportunities that their defendants experience. But as highly decentralized institutions, traffic courts also present worries: that with little oversight, they will fail to discharge the work they are responsible for—both their responsibility to treat individuals fairly and their responsibility as first reviewers of our system of policing—and we will not know it. This Section describes the potential upsides of traffic courts as well as the risks that they pose.

It has long been a value of our federal system that decentralized institutions are better able to tailor their workings to the communities they serve. Michael McConnell, in his seminal work on the values of federalism, wrote:

The first, and most axiomatic, advantage of decentralized government is that local laws can be adapted to local conditions and local tastes, while a national government must take a uniform—and hence less desirable—approach. So long as preferences for government policies are unevenly distributed among the various localities, more people can be satisfied by decentralized decision making than by a single national authority.[198]

Justice O’Connor echoed this sentiment when she wrote in Gregory v. Ashcroft that federalism “assures a decentralized government that will be more sensitive to the diverse needs of a heterogenous society; it increases opportunity for citizen involvement in democratic processes; it allows for more innovation and experimentation in government; and it makes government more responsive by putting the States in competition for a mobile citizenry.”[199]

This value is similarly applicable within our context of judicial federalism, or the distribution of authority between federal and state courts. As I have written previously,

Local courts do provide increased sensitivity to a diverse society: see, for example, commercial courts and family rehabilitation courts that are tailored to the needs of their communities. State courts generally provide greater opportunities for citizen involvement in government: local courts are sources of employment and extend the judicial power beyond federal judges. And state courts can at times provide a check on federal power by providing an alternate source for individual rights and liberties from the federal system.[200]

Traffic courts provide a particularly valuable version of these benefits. Because traffic judges have significant discretion both procedurally and substantively, they have the authority to shade an unusual amount of their jurisprudence with their own vision of fairness (and, as I described above, that is exactly what they do).[201] That vision of fairness incorporates community notions of the judicial role into the court, creating the potential for a form of representative government.

Traffic courts also vindicate what I have in previous work called the descriptive benefit of federalism: They “serve a descriptive function by putting on display, for anyone willing to look, the administration of justice. In this reading, the deeply parochial nature of local courts is a benefit, not a cost.”[202] More so than any other court, traffic courts show us the justice that we actually possess, not the justice we believe we possess.

Traffic courts—and those who serve as traffic judges—additionally appear to satisfy what people want from these courts. In a recent study, Herbert Kritzer surveyed people to discover what qualities they believed were essential in various kinds of state judges.[203] In general, he found that people want different things from their state supreme court justices and their local trial court judges. Whereas 88% of people found “deep legal knowledge” to be an “essential” quality for state supreme court justices, only 66% of people found that same quality essential for local trial court judges.[204] On the other hand, whereas 54% of respondents felt it was essential for their local trial court judges to “understand community preferences,” only 21% of respondents felt the same about state supreme court judges.[205] Kritzer also found that people want both their state supreme court justices and their local trial court judges to be good listeners.[206]

Traffic judges—at least the ones I spoke with—seemed to meet at least some of these needs. Though most of the judges I spoke with did not have “deep legal knowledge,” they did pride themselves on listening to the litigants to the best of their abilities.[207] They seemed to understand their communities as well as their roles within those communities. One judge I spoke with mentioned that she was aware of a speed trap in her community because she herself had received a ticket there. As a consequence, she could empathize with defendants caught by the same trap. Another felt that he had a role to play in ensuring traffic safety in his community and made sure that defendants who appeared before him understood that his rulings were in part oriented toward that goal. These examples might seem small, but they illustrate how integrated into communities traffic judges can be and how that integration can play a concrete role in their adjudication.[208]

Although traffic courts may meet some community needs, some of their features cause concern that traffic courts do not, in fact, produce justice. What is “justice” in the context of traffic courts? One way to evaluate justice—and access to it—is to consider the availability of legal counsel.[209] In traffic court (and other lawyerless courts), widespread legal counsel is infeasible, both because of the vast number of traffic cases and the relatively low monetary value of each individual case.[210] Professor Sandefur has posited an expanded vision of access to justice: “When the relevant substantive and procedural norms govern resolution, that resolution is lawful and we have access to justice, whether or not lawyers are involved in the resolution.”[211]

Various features of traffic courts can create conditions that violate these norms. As one part-time traffic judge—who also happened to be a practicing lawyer in traffic courts—described, a set of structural and procedural factors join to stack the deck against traffic court defendants. These include many of the features that make the proceedings informal: the lack of pre-trial discovery; the non-applicability of the rules of evidence; the overall informality of the process; the burden of proof as only a preponderance of the evidence;[212] and the fact that whereas defendants are often appearing for the first time, the police officers are seasoned veterans.[213] As he put it, “It’s a simplified system, but it’s streamlined for the state and against the defendant. It’s a high burden to overcome to the procedural and structural design of the system.”[214]

There is thus a deep concern that the things that set traffic courts apart from both federal and state general jurisdiction courts—in particular, simplified rules, expanded judge discretion, diversity, infrequent oversight, and the lack of lawyers in the courtroom—work against the interests of traffic court defendants and create the possibility that traffic court operations will violate basic constitutional rights.[215]

Take judge discretion, for example. As the ACLU details in a report called At All Costs: The Consequences of Rising Court Fines and Fees in North Carolina, one consequence of judge discretion is a problematic inconsistency: “In courtrooms across the state, there is no consistent standard for when and how fines and fees are imposed, and too many judges do not fulfill their constitutional obligation to inquire about an individual’s financial status before ordering them to pay fines and fees, as required by law.”[216] Or as another example, consider the judges studied by Carpenter, Shanahan, Steinberg, and Mark, who enjoyed great procedural discretion when engaging with pro se clients. Instead of using that discretion to the pro se litigants’ advantage, they “exercised process control and wielded legal jargon in ways that maintained legal and procedural complexity in their courtrooms.”[217]

The discretion granted to traffic judges may additionally introduce bias.[218] Elizabeth MacDowell has described how family courts have become “delegalized” in a way that is reminiscent of traffic courts, in part because of the “informal fact finding and dispute resolution” that occurs in family courts.[219] While MacDowell believes that informal dispute resolution may advantage some litigants,[220] she also notes that in this context, “much decision-making affecting legal rights takes place largely without reference to legal rights and norms and, in many cases, without a written record or the possibility of appellate review.”[221] And “the discretion afforded to non-legal professionals and the indeterminacy of legal standards also leaves litigants vulnerable to the infiltration of bias in decision-making.”[222] Any advantages that might derive from informality are lost on “vulnerable populations without the resources to negotiate legal remedies under more favorable circumstances.”[223] This concern also arises for traffic courts.

Traffic courts pose a second-order worry as well: we simply do not have a good enough idea of what goes on inside these courts to assure ourselves that they are just. No one pays attention to what happens inside of traffic courts: not academics, not the media, not advocates. State court administrative offices often pay little attention to the goings on in hyperlocal courts like the ones traffic cases are heard in.[224] Appellate courts provide little oversight because appeals rates from traffic court are miniscule.[225] Previous estimates for appeals rates from hyperlocal courts range from well under one percent[226] to somewhere between one and two percent.[227] Only one traffic judge I spoke with knew of a time that he had been reversed on appeal, or that he had been appealed at all. Without more observation of some kind—be it media attention, scholarly attention, or administrative attention—we have little basis to gauge the fairness or unfairness of traffic courts.

This opacity, joined with the vast discretion that traffic judges possess, the informality of the traffic courtroom, and the low societal salience of any individual traffic case, is a dangerous combination.[228] We have little certainty that traffic judges will reach the correct results,[229] few rules and regulations to provide precise guidance in many states, and almost no oversight of traffic judge conduct and decisions. And with few lawyers present, litigants may not understand that they are experiencing unjust conditions. Consider, for example, the Department of Justice’s report on Ferguson, Missouri, which detailed the many constitutional violations that can persist systemically—including economic sanctions that violate Due Process, Fourth Amendment violations, and Eighth Amendment Excessive Fines Clause violations—when there are few lawyers to litigate them.[230]

Finally, traffic courts are uniquely unsuited to their place in the justice system as essentially the only review of police-motorist interactions and of race discrimination allegations during those interactions in particular. Racial discrimination claims are complex, fact-heavy claims that traffic courts are not equipped to handle. The traffic judges I spoke with in general resisted the idea that they could resolve a claim of racial bias.[231] When I asked whether defendants ever argued that they received a ticket because of their race or ethnicity, most judges said that they occasionally heard arguments like that but expressed reluctance to engage. One judge said that she “ignore[s]” arguments like that because they “open[] up a whole can of worms.”[232] Another said that he would “[j]ust tell them that this is not what this court is for, and [the defendant] can bring it up with the officer’s superior.”[233] One responded that “the rules don’t allow the judge really to take that into consideration. The rules are structured to relevance. So what is the relevance of the fact that the officer may have picked you out of other people speeding at the same speed—how does that change the allegation of violation?”[234] Another said that a racism claim would not “have any bearing because there isn’t any evidence.”[235]

In sum, aspects of traffic court administration—in particular, the nonlegal competencies of judges and the informal, community-driven atmosphere of traffic courts—vindicate a set of judicial values that we prize. But there is also good reason to worry that injustice takes place in traffic courts: judges wield tremendous discretion without any significant oversight, which creates space for bias and unfairness that are unlikely to be corrected.

B.   New Categories and Forms of Oversight

What exactly is traffic court?

Local institutions are fascinating in part because they explode our traditional categories. As Maria Ponomarenko has observed in recent work, when we study local governments, we see legislatures that look like executives[236] and rulemaking that looks very different from federal administration.[237]

Local courts do something similar. Professors Pamela Bookman and Colleen Shanahan have written about how the state court/federal court dichotomy in civil procedure may not be as salient as another dichotomy: that between courts where the parties are represented by lawyers on the one hand, and lawyerless courts on the other.[238] In this reading, state courts where the parties are represented by lawyers are actually more similar to federal courts than to state courts where the parties are not represented. Professor Alexandra Natapoff and others have also written about how municipal courts blur the line between criminal and civil law because some criminal penalties feel civil in nature[239] and some civil penalties are enforced through criminal sanctions.[240]

Traffic courts do similar work of encouraging us to think in different terms about the nature of the justice system. Thinking differently can help us to maintain the benefits described above while minimizing the risks. Here, I describe two new categorical distinctions that traffic courts present, and I then argue that each category suggests novel approaches to reform and oversight.[241]

The first dichotomy is between precedential courts and nonprecedential courts.[242] As I have shown, traffic court judges, at least in some jurisdictions, are focused more on applying statutes to factual circumstances than applying doctrine.[243] Because defendants are so rarely represented by lawyers, there are few lawyers in the courtroom to make doctrinal arguments. And because traffic judges themselves are so often lay judges, they will not be as familiar with the practice of precedent as other kinds of judges.[244] Nor does extensive statutory traffic doctrine even exist.

It may be worthwhile, then, to think in terms of precedential courts and nonprecedential courts. Whereas we expect precedential courts to engage in certain kinds of reasoning and argument, nonprecedential courts are free to make arguments that might seem external to traditional legal argument. In this way, traffic court judges may actually be more similar to state supreme court justices than to any other type of judge. They do very different jobs, of course—supreme court justices set precedent for the hundreds or thousands of judges in the state. But both types of judges are supreme in their own ways. Neither is overly constrained by precedent: state supreme court justices because they are state supreme court justices, and traffic court judges because they largely operate in lawyerless courtrooms. Neither is subject to significant appeal: state supreme court justices because the only place to appeal is the United States Supreme Court if a suit includes a federal issue, and traffic judges because traffic litigants rarely appeal. Because both types of judges are unconstrained by precedent, they make arguments grounded in a broader base of legal and cultural concepts and values, like fairness.

Understanding traffic courts as significantly nonprecedential suggests a type of reform whereby traffic court judges should be selected and trained in a way that helps them develop their understanding of what nonprecedential fairness is and how it can be applied. The truth is that we know very little about how traffic judges—or local judges generally—are trained. Similarly, while some states offer traffic-specific training programs (like the one I attended), we do not yet know either how common those training programs are or what their contents include. But since my study suggests that traffic judges operate with a great deal of discretion and without many legal constraints, their training should provide guidance for that particular set of challenges.

The second dichotomy that traffic courts present is between law and administration. Three factors suggest that traffic courts may be better thought of as an administrative agency performing an administrative function rather than a judicial one. First, oversight is scarce. As I have mentioned, appeals rates from local courts, including traffic courts, are extremely low.[245] Second, the traffic caseload is massive. The number of traffic cases is much closer to the number of families receiving food stamps than it is to the next closest number of case types.[246] Third, some states already engage in an administrative approach to traffic cases through programs like “traffic bureaus,” once known as “cafeteria courts.”[247]

This second idea—that traffic courts may function more like an agency than a court—suggests that administrative oversight may be one way of effectively managing these courts. But traffic courts are already associated with statewide administrative offices (generally called “Administrative Offices of the Courts,” or AOCs).[248] And although relationships between state AOCs and their local courts can often be very attenuated,[249] those AOCs are capable of performing administration oversight functions if they choose.

Two forms of administrative oversight that state AOCs could engage in, with respect to traffic courts, are the secret shopper method and regular audits. Both are well-established forms of quality control for administrative agencies but not traditionally used on courts.[250] Secret shopper oversight involves sending someone, unknown to the agency being observed, into the agency to observe how the agency performs.[251] Secret shopper programs have been used with some success in Veterans Affairs hospitals[252] and as proposals to evaluate Medicaid programs.[253] Oversight via audit has also had some success in providing oversight of administrative agencies,[254] and police departments in particular. As Wayne Logan and Andrew Ferguson have written, “Auditing . . . is generally viewed as one of the most effective data quality procedures.”[255] Mariano-Florentino Cuéllar has suggested that in circumstances where judicial review of administrative action is infeasible, administrative audits can play an important oversight role.[256] Some states have audited their court systems as well, though generally for questions of operational efficiency.[257]

Similarly here, secret shopper observation and formal or informal audits could serve as meaningful forms of oversight of traffic court proceedings where judicial review—because of the large number of cases and the low appeals rate—is infeasible. State administrative officers could observe a certain number of traffic judges per year. And traffic judges could perform audits of audio recordings of traffic court proceedings presided over by hearing officers.

These two dichotomies—precedential and nonprecedential courts, judicial and administrative courts—suggest novel forms of reform for more than just traffic courts. It is not just traffic courts that have low appeals rates—it is hyperlocal courts more broadly.[258] And it is not just traffic courts that rarely see attorneys. The vast majority of justice and municipal courts are filled with pro se litigants.[259] These similarities suggest that similar forms of reform—that is, trainings that develop concepts of fairness and oversights that take a more administrative sheen—could be useful for local courts more broadly.

Conclusion

In 1987, Mari Matsuda taught us that “[t]he method of looking to the bottom can lead to concepts of law radically different from those generated at the top.”[260] The law, when viewed closest to the people, does not always follow the rules that we think it does. Investigating from the bottom up, rather than from the top down, both inspires new theorizing and suggests reforms that might otherwise not be apparent.[261]

Traffic courts provide us with this opportunity. Given that traffic cases are the single largest set of cases resolved in courts in this country, they show us how a large portion of the justice system operates, and how we experience it, more so than any other type of case or court. And what they show us is a vision of the justice system different from what we expect. They show us a form of law that is largely lawyerless, informal, highly discretionary, focused on lay forms of fairness rather than doctrine, and deeply contingent on the facts of each case. They show us that the predominant form of judicial law in the United States has an almost administrative sheen and may require administration-style quality control oversight to monitor effectively.

Traffic courts raise additional questions as well, not addressed in this paper. There are procedural questions: given the informal nature of traffic adjudication, are there minimum procedural standards that traffic courts should uphold, even as they relax other constraints? There are substantive questions: traffic courts seem to operate largely as a civil law system centered around statutory law, rather than the common law system—centered around doctrinal precedent—that we normally associate with the U.S. legal system. What are the consequences of that operation on consistency and uniformity, and what would it look like to develop traffic law through doctrine, rather than statutorily? There are questions about legal education: if most cases are resolved in this informal, statutory style, should we change the way that we teach law to students and offer classes that teach informal case resolution? Finally, traffic courts raise questions about policy and inequality: since traffic courts do not provide an adequate judicial check on police-motorist interactions, what reform is appropriate?

These are big questions, and they should be, as traffic courts are a big part of the legal system. They govern our everyday activities, and it is time we pay attention.

Appendix 1: Traffic Cases

Please see the PDF version of the Article for access to the Appendices.

Appendix 2: Courts and Judges

Please see the PDF version of the Article for access to the Appendices.

Copyright © 2024 Justin Weinstein-Tull, Professor of Law, Arizona State University. I am grateful for generous comments and suggestions from Pam Bookman, Zach Clopton, Beth Colgan, Art Hinshaw, Esther Hong, Thea Johnson, Maria Ponomarenko, and Colleen Shanahan, faculty workshop participants at Rutgers and Arizona State University Law Schools, and participants at Law and Society Association’s Annual Meeting and the State and Local Government Works-in-Progress Conference. I am grateful to Gabriel Goltz and the staff of the Arizona Administrative Office of the Courts for their help. I am grateful to the many judges, hearing officers, and clerks who took the time to share their experiences with me. For tremendous research assistance, I am grateful to Gabriela Berigan, Noah Goldenberg, Freeman Halle, Benjamin Longbottom, and Maria McCabe. And for heroic editorial and citation assistance, I am grateful to Raivo H. Andrian, Kayla Clough, Adam David, Christian Howard-Sukhil, Andrew Schwartz, and the incredible team of editors at the California Law Review.

[1].CSP STAT Traffic: Trial Court Caseload Overview, Ct. Stat. Project,  https://www.courtstatistics.org/court-statistics/interactive-caseload-data-displays/csp-stat-nav-cards-first-row/csp-stat-overview [https://perma.cc/97TJ-WD5L] (select “composition” from the options) (estimating that traffic cases made up 51% of all state cases filed in 2019 (42.3 million traffic cases of 83.2 million total state cases) and 47% in 2020 (28.5 million traffic cases of 60.2 million total state cases)). By comparison, the number of all cases filed in federal court in 2019 and 2020 were 376,762 and 425,945, respectively. Federal Judicial Caseload Statistics 2019, U.S. Cts., https://www.uscourts.gov/statistics-reports/federal-judicial-caseload-statistics-2019 [https://perma.cc/4GXP-QNZX]; Federal Judicial Caseload Statistics 2020, U.S. Cts., https://www.uscourts.gov/statistics-reports/federal-judicial-caseload-statistics-2020 [https://perma.cc/X564-Q6C7].

[2].In both 2019 and 2020, the second most common type of case filed was criminal cases. Ct. Stat. Project, supra note 1 (estimating that criminal cases made up 22% of total state cases in 2019 and 24% in 2020).

[3].See generally Lisa Foster, The Price of Justice: Fines, Fees and the Criminalization of Poverty in the United States, 11 U. Miami Race & Soc. Just. L. Rev. 1, 15–16 (2020) (describing how fines and fees snowball after a failure to pay).

[4].Id. at 19 (“If a person does not appear at a scheduled court hearing, perhaps because they could not take time off from work, could not arrange childcare, did not have transportation, or were ill, the judge may issue a warrant for the person’s arrest.”).

[5].See Jon A. Carnegie & Alan M. Voorhees, N.J. Dep’t Transp., Driver’s License Suspensions, Impacts and Fairness Study 56 (2007), https://vtc.rutgers.edu/wp-content/uploads/2014/04/MVC-DL-Suspension-Study-Final-Report-Vol1_9-13-07.pdf [https://perma.cc/C53K-S6A2] (finding that 42% of people whose license was suspended lost their job, and only 45% of those people were ultimately able to find new work).

[6].See, e.g., J.R. Thorpe, Why Short Prison Sentences Have a Particularly Damaging Effect on Mothers, Bustle (Jan. 2, 2018), https://www.bustle.com/p/short-term-incarceration-hurts-women-mothers-in-particular-people-are-calling-to-end-the-practice-7706903 [https://perma.cc/P34D-Q283] (noting that even short sentences can result in the loss of housing and the displacement of children).

           [7].     Although no recent article has broadly tackled the problem of traffic courts, a number of articles in the 1950s and 1960s took traffic courts as their subject. See, e.g., Ross D. Netherton, Fair Trial in Traffic Court, 41 Minn. L. Rev. 577 (1957); M.F. & M.J., The Philadelphia Traffic Court, 109 U. Pa. L. Rev. 848 (1961); California Traffic Law Administration, 12 Stan. L. Rev. 388 (1960); James P. Economos, Traffic Courts and Justice of Peace Courts, 25 N.Y.U. L. Rev. 66 (1950); Arthur T. Vanderbilt, Traffic Law Enforcement from the Standpoint of the Courts, 4 Rutgers L. Rev. 555 (1950); Gerald S. Levin, Traffic Courts: A Vital Force in the Administration of Justice, 14 Hastings L.J. 339 (1963); James W. Hodson, Improving the Administration of Justice in Traffic Courts, 19 Wa. L. Rev. & St. B.J. 1 (1944); Oscar J. Schmiege, Traffic Court Procedure, 1958 Wis. L. Rev. 175 (1958); Paul A. Johnston, A Plan for the Hearing and Deciding of Traffic Cases, 33 N.C. L. Rev. 1 (1954). These articles coincided with a national movement to unify, or consolidate, state court systems in the 1940s and 1950s. See Justin Weinstein-Tull, The Structures of Local Courts, 106 Va. L. Rev. 1031, 1064 (2020) (“In the 1950s, many states began an effort to unify their court systems in order to improve and standardize their administration of justice. As part of that effort, states created administrative bodies within their judicial branches.”); Stephen C. Yeazell, Courting Ignorance: Why We Know So Little About Our Most Important Courts, 143 Daedalus 129, 135–36 (2014) (describing the “drive for ‘court ‘unification’” in the 1940s). During that time, court reform was in the air. One notable exception to the scarcity of contemporary research on traffic courts is an enlightening recent article by Avital Mentovich, J.J. Prescott, and Orna Rabinovich-Einy on procedural justice in the context of online traffic court hearings. See generally Avital Mentovich et al., Legitimacy and Online Proceedings: Procedural Justice, Access to Justice, and the Role of Income, 57 L. & Soc. Rev. 189 (2023).

[8].See Ethan J. Leib, Localist Statutory Interpretation, 161 U. Pa. L. Rev. 897, 898–99 (2013) (“[L]egal scholars have almost universally ignored the law in local courts, favoring the study of federal courts and state appellate courts.”); Merritt E. McAlister, White-Collar Courts, 76 Vand. L. Rev. 1155, 1157 (2023) (noting that federal courts “receive a vastly disproportionate amount of scholarly (and popular) attention” and that  “[w]e academics teach a—perhaps overrated—class on federal courts, while ignoring state courts as institutions in a variety of ways”); Weinstein-Tull, supra note 7, at 1034 (noting that “despite the place of local courts at the heart of the justice system, and despite even the compelling human stories that unfold in these courts, we know very little about them”).

[9].See, e.g., Pamela K. Bookman & Colleen F. Shanahan, A Tale of Two Civil Procedures, 122 Colum. L. Rev. 1183, 1184 n.1 (2022) (omitting traffic courts from their analysis of civil procedure in state civil courts); Alexandra Natapoff, Criminal Municipal Courts, 134 Harv. L. Rev. 964, 975 (2021) (excluding traffic cases from a count of criminal municipal court cases); Colleen F. Shanahan, Jessica K. Steinberg, Alyx Mark & Anna E. Carpenter, The Institutional Mismatch of State Civil Courts, 122 Colum. L. Rev. 1471, 1486 n.56 (2022) (excluding traffic cases from their definition of “civil justice matters” but noting that “[t]he volume and nature of traffic cases is worthy of its own empirical inquiry”).

[10].Scholars—especially those in the access to justice field—have recently done wonderful work on the functioning of state and local courts more broadly, much of which is relevant to traffic courts. Colleen Shanahan, Jessica Steinberg, Alyx Mark, and Anna Carpenter, for example, have done field-defining work on state civil trial courts generally, including work on the role of judges in courtrooms where no party is represented. See generally Anna E. Carpenter et al., Judges in Lawyerless Courts, 110 Geo. L.J. 509 (2022). They have also traced the institutional mismatch between state trial court functioning and the role that those courts play in people’s lives. See generally Colleen F. Shanahan et al., The Institutional Mismatch of State Civil Courts, 122 Colum. L. Rev. 1471 (2022). Sara Sternberg Greene and Kristen Renberg have done pathbreaking work on how lay judges judge. See generally Sara Sternberg Green & Kristen M. Renberg, Judging Without a J.D., 122 Colum. L. Rev. 1287 (2022). Pamela Bookman and Colleen Shanahan have done amazing work on civil procedure in small state trial courts where one or more parties is self-represented. See generally Pamela K. Bookman & Colleen F. Shanahan, A Tale of Two Civil Procedures, 122 Colum. L. Rev. 1183 (2022). Diego Zambrano has done fascinating work on the “decay” of state courts and discovery in state courts. See generally Diego A. Zambrano, Federal Expansion and the Decay of State Courts, 86 U. Chi. L. Rev. 2101 (2019); Diego A. Zambrano, Missing Discovery in Lawyerless Courts, 122 Colum. L. Rev. 1423 (2022). Tonya Brito and others have done illuminating work on the intersection of race and poverty in the state civil courts. See generally Tonya L. Brito et al., Racial Capitalism in the Civil Courts, 122 Colum. L. Rev. 1243(2022); Tonya L. Brito, Producing Justice in Poor People’s Courts: Four Models of State Legal Actors, 24 Lewis & Clark L. Rev. 145 (2020). And others have done important work on specialized state civil trial courts, like eviction court, see generally Lauren Sudeall & Daniel Pasciuti, Praxis and Paradox: Inside the Black Box of Eviction Court, 74 Vand. L. Rev. 1365 (2021); Kathryn A. Sabbeth, Eviction Courts, 18 U. St. Thomas L.J. 359 (2022); debt collection claims, Daniel Wilf-Townsend, Assembly-Line Plaintiffs, 135 Harv. L. Rev. 1704 (2022); and problem-solving courts like drug courts, Erin Collins, The Problem of Problem-Solving Courts, 54 U.C. Davis L. Rev. 1573 (2021); Jessica K. Steinberg, A Theory of Civil Problem-Solving Courts, 93 N.Y.U. L. Rev. 1579 (2018). Finally, Alexandra Natapoff has done groundbreaking work on criminal cases in municipal courts. See generally Natapoff, supra note 9. As traffic courts are largely lawyerless courts, with informal procedures, frequently presided over by adjudicators without law degrees, these studies all deeply inform this Article’s analysis.

[11].For a recent, fantastic exploration of this topic and description of these literatures, see generally Beth A. Colgan, Revenue, Race, and the Potential Unintended Consequences of Traffic Enforcement Reform, 100 N.C. L. Rev. 889 (2023).

[12].See, e.g., Veryl Pow, Rebellious Social Movement Lawyering Against Traffic Court Debt, 64 UCLA L. Rev. 1770, 1776–80 (2017); Jordan Blair Woods, Reimagining Traffic Fines and Fees, 14 U.C. Irvine L. Rev. (forthcoming 2024).

[13].See, e.g., William E. Crozier & Brandon L. Garrett, Driven to Failure: An Empirical Analysis of Driver’s License Suspension in North Carolina, 69 Duke L. J. 1585,  1587–90, 1597–99  (2020); Jennifer M. Lechner & B. Leigh Wicclair, Driven to Despair: Confronting Racial Inequity in North Carolina’s License Suspension Practices, 43 Campbell L. Rev. 203, 207–16 (2021).

         [14].     See generally Sara C. Bronin & Gregory H. Shill, Rewriting Our Nation's Deadly Traffic Manual, 135 Harv. L. Rev. F. 1 (2021); Sara C. Bronin, Rules of the Road: The Struggle for Safety & the Unmet Promise of Federalism, 106 Iowa L. Rev. 2153 (2021); Gregory H. Shill, The Future of Law and Transportation, 106 Iowa L. Rev. 2107 (2021).

[15].See Sarah A. Seo, Why We Can — and Must — Create a Fairer System of Traffic Enforcement, Wash. Post (May 15, 2019), https://www.washingtonpost.com/outlook/2019/05/15/why
-we-can-must-create-fairer-system-traffic-enforcement/ [https://perma.cc/CA87-YPVY] (“Of course, traffic violations must be punished. Our safety on the streets depends on it . . . . [W]ithout the threat of some consequence, people may be disinclined to pay their tickets, and without a penalty, they may feel little need to abide by the traffic laws.”). There is a serious debate, however, whether all traffic enforcement actually improves public safety, see, e.g., Heather Knight, The Real Problem with S.F. Parking Tickets: Most Don’t Go to Dangerous Drivers, S.F. Chron. (May 20, 2023), https://www.sfchronicle.com/sf/bayarea/heatherknight/article/parking-tickets-18106566.php [https://perma.cc/A6YP-SUCN] (“Of the 1.2 million tickets the [San Francisco Municipal Transportation Agency] writes every year, 92% are issued for behavior that doesn’t affect public safety, including staying too long at meters and not moving for street cleaning trucks.”), or, even if it does, whether it is worth the costs. See Sarah A. Seo, Policing the Open Road: How Cars Transformed American Freedom 5 (2019) (“The overpolicing of cars is a fact of life for people of color in the United States . . . [I]n 2015, . . . 27 percent of police killings of unarmed citizens began with a traffic stop.”); Libby Doyle & Susan Nembhard, Police Traffic Stops Have Little to Do with Public Safety, Urban Inst. (Apr. 26, 2021), https://www.urban.org/urban-wire/police-traffic-stops-have-little-do-public-safety [https://perma.cc/RG24-HRMP?type=image]  (“The deeply entrenched racial disparities in traffic enforcement and the continued killing of Black drivers show that regardless of intentions, the harms of traffic stops far outweigh any potential public safety benefits. Traffic stops result in neither increased trust in the police nor increased perceptions of safety among community members, and they often have the opposite effect.”).

[16].Arizona Civil Traffic Hearing Officer Training, Module One, Ariz. Jud. Branch (document on file with author).

[17].See, e.g., Little Rock District Court, Second Division, City of Little Rock Ark., https://www.littlerock.gov/city-administration/city-departments/district-courts/traffic-court/ [https://perma.cc/WAU7-QE27] (describing the court that heard traffic cases as “traffic court”); Guide to Traffic Tickets, Ca. Cts: The Jud. Branch of Ca., https://selfhelp.courts.ca.gov/traffic [https://perma.cc/J5WM-EUVJ] (“You can get a traffic ticket for minor driving offenses or equipment violations, like running a red light, speeding, or having a broken tail light. These types of tickets are handled in traffic court.”). Most states use similar nomenclature. Some encourage the separation of traffic from other cases, even if there is no explicit “traffic court.” See Ind. Code Ann. § 9-30-3-9(a) (“If possible, traffic cases shall be tried separate and apart from other cases and may be designated as the ‘traffic’ session or division.”).

[18].See Traffic Resource Center of Judges, Traffic Courts: Past and Future (Sept. 2019) (manuscript on file with author) (noting that traffic court “has meant and continues to mean different things for different states. The development of these courts, including how they are structured and organized, reflects on the ways in which local justice administered locally have been conceived in the United States and their future is also an indicator of what that local justice may look like in the future.”).

[19].See Weinstein-Tull, supra note 7, at 1040–41 (describing the differences between limited and general jurisdiction courts).

[20].See id.

[21].Judicial System Chart, Ala. Jud. Sys., https://judicial.alabama.gov/Appellate/Judicial
SystemChart [https://perma.cc/FL22-QCZ8].

[22].See Ala. Code § 12-12-51 (2022); Ala. Code § 12-14-1 (2022).

[23].See About California Courts, Cal. Cts.: The Jud. Branch of Cal., https://www.courts.ca.gov/2113.htm [https://perma.cc/RJ36-Z3FJ].

[24].See Jud. Council of Cal., Fact Sheet: California Judicial Branch 3 (2022) https://www.courts.ca.gov/documents/California_Judicial_Branch.pdf [https://perma.cc/8CYN-39TN] (explaining that all California counties have unified trial court systems, where a single superior court has jurisdiction over all case types). Many superior courts have specific traffic divisions. See, e.g., Traffic Division, Superior Ct. of Cal., Cnty. of Santa Cruz, https://www.santacruz.courts.ca.gov/
divisions/traffic-division [https://perma.cc/8RN5-7W23].

[25].These states are California, Illinois, Iowa, Minnesota, Vermont, and the District of Columbia. See State Court Structures, Nat’l Ctr. for State Cts., https://cspbr.azurewebsites.net/ [https://perma.cc/4FNP-6M2P] (select the “single tiered” trial structure filter).

[26].Whether traffic violations are statutorily civil or criminal in nature varies by state and is a question whose answer is in flux. See Jordan Blair Woods, Decriminalization, Police Authority, and Routine Traffic Stops, 62 UCLA L. Rev. 672, 679–80 (2015) (“Since 1970, twenty-two state legislatures have decriminalized minor traffic offenses by removing them from the criminal framework and eliminating the criminal sanctions that once attached to them. More states may follow.”).

[27].Limited Jurisdiction Filings by Month, Traffic Filings, Statistics, Ariz. Jud. Branch, https://www.azcourts.gov/statistics/Interactive-Data-Dashboards/Traffic-Filings [https://perma.cc/SY6B-Z45G].

[28].Ct. Stat. Project, supra note 1.

[29].Id.

[30].United States District Courts — National Judicial Caseload Profile, Statistics & Reports, U.S. Cts., https://www.uscourts.gov/sites/default/files/data_tables/fcms_na_distprofile
1231.2021.pdf [https://perma.cc/5H6M-UZ3J].

[31].See id.; Ct. Stat. Project, supra note 1.

[32].See Appendix 1.

[33].Id.

[34].Id.

[35].Id.

[36].See id.

[37].Ct. Stat. Project, supra note 1.

[38].Id.

[39].Id.

[40].Jud. Council of Ca., 2021 Court Statistics Report: Statewide Caseload Trends 2010–11 Through 2019–20, 54 fig.34 (2021), https://www.courts.ca.gov/documents/2021-Court-Statistics-Report.pdf [https://perma.cc/8YAG-UKCY].

[41].Id. at 55 fig.35.

[42].Id. at 51 fig.23.

[43].Id. at 55 fig.23.

[44].For an important critique of installment payments, see Beth A. Colgan & Jean Galbraith, The Failed Promise of Installment Fines, 172 U. Pa. L. Rev. 989 (2024) (describing installment fines as “a major source of oppression, injustice, and inequality”).

[45]. Personal Narrative: Andrew, Fines & Fees Just. Ctr. (Apr. 8, 2015), https://finesandfeesjusticecenter.org/articles/personal-narrative-andrew/ [https://perma.cc/QV7P-RVDL].

[46].See Spencer Schneider, The Wheels on the Bus: The Statutory Schemes That Turn Traffic Tickets into Financial Crises, 77 Nat’l Law. Guild Rev. 81, 81–82 (2020).

[47]. Personal Narrative: Levi Lane, Fines & Fees Just. Ctr. (May 16, 2016), https://finesandfeesjusticecenter.org/articles/personal-narrative-levi-lane/ [https://perma.cc/LUA4-G2DQ].

[48].See infra notes 68–76 and accompanying text.

[49].Foster, supra note 3, at 5–6.

[50].Id. at 8.

[51].Id. at 16 (“Alabama charges five dollars per month for every payment made pursuant to a payment plan. California allows courts to charge up to $300 as a ‘civil assessment fee’ if a payment is late and up to thirty-five dollars to establish a payment plan. Buffalo, charges a fifteen-dollar deferral fee if you don’t pay immediately, and ten dollars for each subsequent deferral.”).

[52].Veryl Pow, Rebellious Social Movement Lawyering Against Traffic Court Debt, 64 UCLA L. Rev. 1770, 1778 (2017).

[53].Francis X. Clines, California’s ‘Hellhole’ for Traffic Violators, N.Y. Times (May 29, 2015), https://archive.nytimes.com/takingnote.blogs.nytimes.com/2015/05/29/californias-hellhole-for-traffic-violators/?_r=0 [https://perma.cc/W3KJ-XZ2M].

[54].Martha Minow, Access to Justice, 2 Am. J. L. & Equal. 293, 297 (2022).

[55].See, e.g., Melissa Sanchez, She Owed $102,158.40 in Unpaid Tickets, but She’s Not in the Story, ProPublica (Mar. 2, 2018), https://www.propublica.org/article/chicago-ticket-debt-investigation-interviews [https://perma.cc/DSZ3-4WV5] (describing a woman who, in the course of just a few years, racked up the crushing debt of over one hundred thousand dollars, largely for tickets noting her failure to possess a parking permit).

[56].See Joni Hirsch & Priya Sarathy Jones, Driver’s License Suspension for Unpaid Fines and Fees: The Movement for Reform, 54 U. Mich. J.L. Reform 875, 876 (2021).

[57].See Existing Laws for Failure to Pay, Free to Drive, https://www.freetodrive.org/maps/ [https://perma.cc/TAE9-N5RJ] (showing that nineteen states plus the District of Columbia do not allow courts to suspend driver’s licenses as a consequence of a failure to pay existing monetary penalties); See also Jennifer M. Lechner & B. Leigh Wicclair, Driven to Despair: Confronting Racial Inequity in North Carolina’s License Suspension Practices, 43 Campbell L. Rev. 203, 205–06 (2021) (“Since 2017, Montana, Texas, Mississippi, California, Idaho, Maine, Hawaii, Maryland, Oregon, Virginia, West Virginia, and the District of Columbia have passed legislation to countermand the societal harm inflicted by debt-based suspensions. In 2020, Maryland, West Virginia, and New York stopped suspending driver’s licenses for unpaid fees and fines altogether. These efforts reflect bipartisan support to enact reform in the name of equity, public safety, and economic opportunity.”).

[58].See Existing Laws for Failure to Appear, Free to Drive, https://www.freetodrive.org/maps/ (showing that only thirteen states plus the District of Columbia do not allow courts to suspend driver’s licenses as a consequence of a failure to appear for a court appointment).

[59].Lechner & Wicclair, supra note 57, at 205.

[60].Carnegie & Voorhees, supra note 5, at 56.

[61].Alex Bender, Steven Bingham, Mari Castaldi, Elisa Della Piana, Meredith Desautels, Michael Herald, Endria Richardson, Jesse Stout Theresa Zhen, Not Just a Ferguson Problem: How Traffic Courts Drive Inequality in California 6, 13 (2015) [hereinafter Not Just a Ferguson Problem], https://lccrsf.org/wp-content/uploads/Not-Just-a-Ferguson-Problem-How-Traffic-Courts-Drive-Inequality-in-California-4.8.15.pdf [https://perma.cc/
RV44-E4VR].

[62].Id. at 6.

[63].Pow, supra note 52, at 1781.

[64].Bender et al., supra note 61, at 6.

[65].See Melissa Sanchez, The Many Roads to Bankruptcy: Here are some stories of Chicagoans driven into ticket debt, ProPublica (Feb. 27, 2018), https://www.propublica.org/article/ticket-debt-chicago-residents [https://perma.cc/8U7X-CDNA].

[66].Melissa Sanchez & Sandhya Kambhampati, How Chicago Ticket Debt Sends Black Motorists into Bankruptcy, ProPublica (Feb. 27, 2018), https://features.propublica.org/driven-into-debt/chicago-ticket-debt-bankruptcy/ [https://perma.cc/X8G8-676E].

[67].See, e.g., Sanchez, supra note 55.

[68].Pow, supra note 52, at 1778.

        [69].      See generally Law. Comm. C.R. S.F. Bay Area, Paying More for Being Poor: Bias and Disparity in California’s Traffic Court System 1 (May 2017), https://lccr.com/wp-content/uploads/LCCR-Report-Paying-More-for-Being-Poor-May-2017.pdf [https://perma.cc/W589-6NBC] (“As data show, people of color are more likely to be subjected to traffic stops. Once stopped, people of color are also more likely to be booked on arrests related to failure to appear or failure to pay. The available county-level data shows that African-American people in particular are four to sixteen times more likely to be booked on arrests related to failure to pay an infraction ticket.” (emphasis omitted)).

[70].John D. Harden, D.C. Parking, Traffic Tickets Snowball into Financial Hardships, Wash. Post (Aug. 6, 2021), https://www.washingtonpost.com/dc-md-va/2021/08/06/dc-traffic-parking-tickets-black-neighborhoods/ [https://perma.cc/M3VA-RBCA].

[71].Id.

[72].Sanchez & Kambhampati, supra note 66.

[73].Id.; see also Tanvi Misra, Mapping California’s Racial Bias in Sentencing Traffic Violations, Bloomberg (Apr. 13, 2016), https://www.bloomberg.com/news/articles/2016-04-13/the-cost-of-driving-while-black-and-latino-in-california-mapped-by-back-on-the-road-california [https://perma.cc/
W64N-4PY7] (describing a study finding that in California, “[m]inorities were more likely to receive traffic citations in the first place, ‘despite the fact that there is no documented difference in driving behavior’”).

[74].William E. Crozier & Brandon L. Garrett, Driven to Failure: An Empirical Analysis of Driver’s License Suspension in North Carolina, 69 Duke L.J. 1585, 1586 (2020).

[75].See, e.g., Pow, supra note 52, at 1780–81; Misra, supra note 73.

[76].See Melissa Toback Levin, Driver’s License Suspensions for Nonpayments: A Discriminatory and Counterproductive Policy, 48 Hastings Const. L.Q. 73, 77–78 (2020).

[77].Frank R. Baumgartner et al., Suspect Citizens: What 20 Million Traffic Stops Tell Us About Policing and Race 30 (2018).

[78].See, e.g., Foster, supra note 3, at 11–12 (“Racial disparities in traffic stops are large and ubiquitous across the nation. A United States Department of Justice report revealed that, in 2011, Black drivers were thirty-one percent more likely to be stopped by law enforcement than White drivers. More recently, the Stanford Open Policing Project examined approximately ninety-three million traffic stops conducted from 2011 to 2017 across twenty-one state patrol agencies and twenty-nine municipal police departments. The study concluded that Black drivers are twenty percent more likely to be stopped by law enforcement than White drivers.”); Chris Horn, Racial Disparities Revealed in Massive Traffic Stop Dataset, Univ. of S.C. (June 12, 2020), https://sc.edu/uofsc/posts/2020/06/racial_disparities_traffic
_stops.php [https://perma.cc/U5WW-AHG5] (“Significant findings from Shoub’s and her colleagues’ analysis of the North Carolina dataset include: Blacks were 63 percent more likely to be stopped even though, as a whole, they drive 16 percent less. Taking into account less time on the road, [B]lacks were about 95 percent more likely to be stopped. Blacks were 115 percent more likely than [W]hites to be searched in a traffic stop (5.05 percent for [B]lacks, 2.35 percent for [W]hites). Contraband was more likely to be found in searches of [W]hite drivers.”).

[79].See Foster, supra note 3, at 12 (“People of color are not only more likely to subjected to traffic stops by law enforcement than White drivers, but they are more likely to be given a ticket and to receive multiple tickets than White drivers. For example, the Department of Justice found that when stopped for speeding, Black drivers are twenty percent more likely to get a ticket than White drivers, and Latinx drivers are thirty percent more likely than White drivers to be ticketed.”).

[80].See id. at 12–13 (“Other investigations throughout the United States document similar findings. Between 2009 and 2011, seven in ten people arrested for traffic offenses in Washington D.C. were Black, despite 43.6 percent of the population being White. In Nebraska, four percent of the population is Black, but comprised nearly eight percent of the people subjected to a traffic stop. In 2018, Black drivers were arrested incident to those traffic stops 18.2 percent of the time, compared with just 4.6 percent for the general population.”).

[81].See id. at 12–13 (“A 2016 review of traffic stops in Bloomfield, New Jersey revealed that although the city is about sixty percent White, seventy-eight percent of ticketed motorists were Black or Latinx. An Oregon analysis of twelve police departments found disparate outcomes (i.e., citation, search, and/or arrest) for Latinx individuals. A 2014–2015 report issued by the Tucson Police Department found that although Black drivers only represented 4.9 percent of the city’s residents, they received 6.5 percent of all traffic citations. Other minority drivers, including Latinx drivers ‘received traffic tickets at a rate slightly less than the percentage of each ethnicity’s population in Tucson.’”); see also Bender et al.,  supra note 61, at 7 (“Recent San Diego and Sacramento data show that African-American people were two to four times more likely to get pulled over for a traffic stop than white people; Hispanic people were also disproportionately stopped and searched. In San Francisco, over 70% of people seeking legal assistance for driver’s license suspensions were African American, though African Americans make up only 6% of the city as a whole.”).

[82].For just some examples, see Jordan Blair Woods, Traffic Without the Police, 73 Stan. L. Rev. 1471 (2021); Jordan Blair Woods, Police Escalation and the Motor Vehicle, 24 New Crim. L. Rev. 115, 116 (2021); Stephen Rushin & Griffin Edwards, An Empirical Assessment of Pretextual Stops and Racial Profiling, 73 Stan. L. Rev. 637 (2021); Beth A. Colgan, Revenue, Race, and the Potential Unintended Consequences of Traffic Enforcement Reform, 101 N.C. L. Rev. 889 (2023); Stephen Bingham et al., Stopped, Fined, Arrested: Racial Bias in Policing and Traffic Courts in California (2016); U.S. Dep’t of Just., C.R. Div., Investigation of the Ferguson Police Department (2015), https://www.justice.gov/sites/default/files/crt/legacy/2015/03/04/ferguson_findings_3-4-15.pdf [https://perma.cc/4VAZ-CF85]; N.Y. L. Sch, Driving While Black and Latinx: Stops, Fines, Fees, and Unjust Debts (2020), https://digitalcommons.nyls.edu/cgi/viewcontent.cgi?article=1007
&context=racial_justice_project [https://perma.cc/H5LW-MR93]; Pow, supra note 52, at 1786 (“Traffic stops are merely a pretext for vehicle searches to further race-based nontraffic criminal investigations, and citations are issued ex post facto to justify illegal searches when they yield neither contraband nor weapons.”).

[83].Foster, supra note 3, at 8.

[84].See Laura Herzog, We Paid $405M in Tickets Last Year; See Where the Money Went, N.J. Advance Media (May 10, 2016), https://www.nj.com/news/2016/05/where_your_ticket_payment_
money_goes_funds_new_jer.html [https://perma.cc/5QWE-LFTU].

[85].For details from other states, see Aravind Boddupalli & Livia Mucciolo, Urb. Inst., Following the Money on Fines and Fees: The Misaligned Fiscal Incentives in Speeding Tickets 5–8 (2022), https://www.urban.org/sites/default/files/publication/105331/following-the-money-on-fines-and-fees_final-pdf.pdf [https://perma.cc/C8G6-8FZE].

[86].See U.S. Dep’t of Just., supra note 82, at 42–62.

[87].See Mike McIntire & Michael H. Keller, The Demand for Money Behind Many Police Traffic Stops, N.Y. Times (Nov. 2, 2021), https://www.nytimes.com/2021/10/31/us/police-ticket-quotas-money-funding.html [https://perma.cc/E8VK-GZYY]; Boddupalli & Mucciolo, supra note 85, at v; Marsha McLeod, City Hall Cashing in on Traffic Tickets, Investigative Post (Feb. 17, 2019), https://www.investigativepost.org/2019/02/27/city-hall-cashing-in-on-traffic-tickets/ [https://perma.cc/KV9W-P5T6].

[88].See Laura Beth Nielsen, The Need for Multi-Method Approaches in Empirical Legal Research, in The Oxford Handbook of Empirical Legal Research 951, 952 (Peter Cane & Herbert M. Kritzer, eds., 2010) (“[F]ully understanding law demands research conducted using multiple approaches.”). For an example of another piece that uses a similarly mixed-methods approach, see generally Greene & Renberg, supra note 10, at 1310-41 (conducting both a fifty-state survey with respect to local judge qualifications and a deeper approach to examining one particular state); Carpenter et al., supra note 10, at 530 (describing how “studying complex social phenomena . . . and understand[ing] the conditions that underlie the phenomena” requires “diverg[ing] from the typical empirical approach to the study of judicial behavior in legal scholarship, which tends to rely on case outcomes and written opinions to explore the factors that might shape judges’ decisions in appellate cases”).

[89].I could have asked many more questions because there is so much we still do not know. For example, how are traffic judges selected? Most state trial court judges are appointed via either election, gubernatorial appointment, or merit board selection. See Judicial Selection: An Interactive Map, Brennan Ctr. for Just., https://www.brennancenter.org/judicial-selection-map [https://perma.cc/
M9LS-KS45] (last updated Oct. 11, 2022). But we do not have specific information about the selection methods for all limited jurisdiction judges and hearing officers who handle traffic cases. 

[90].I received approval to conduct these interviews from the Institutional Review Board (IRB) at Arizona State University. The interviews were unpaid and lasted approximately thirty minutes each. To identify subjects to interview, I first found judges via my professional network and then used the snowball sampling method to find additional subjects. See Robert S. Weiss, Learning from Strangers: The Art and Method of Qualitative Interview Studies 25 (1994) (discussing the snowball sampling method); Lisa Webley, Qualitative Approaches to Empirical Legal Research, in The Oxford Handbook of Empirical Legal Research 926, 934 (Peter Cane & Herbert M. Kritzer, eds., 2010) (same).

[91].See Traffic Judge Interview Questions (on file with author).

[92].Courthouse Garden Weddings, Cnty. of Santa Barbara Parks, https://www.countyofsb.org/1065/Courthouse-Garden-Weddings [https://perma.cc/R25F-8W5P].

[93].To get a basic view of the building, see Google Maps, https://www.google.com/maps [https://perma.cc/5FR2-C9BH] (enter “Kayenta Justice Center” in the search box and click the “search” button).

[94].See Weinstein-Tull, supra note 7, at 1034 (“Because local courts are influenced by all levels of government—federal, state, and local—they exhibit a radical diversity—not just between states but within them, and not just in the way that they operate but in their organizing structures.”).

[95].See Nat’l Ctr. for State Cts., supra note 25.

[96].See Judiciary Organization Chart, Ariz. Jud. Branch, https://www.azcourts.gov/2012
annualreport/JudiciaryOrganizationalChart.aspx [https://perma.cc/98RU-23KW]; Limited Jurisdiction Courts, Ariz. Jud. Branch, https://www.azcourts.gov/guidetoazcourts/Limited-Jurisdiction-Courts [https://perma.cc/29L9-GKZT].

[97].See Jud. Council of Cal., supra note 24 (“A superior court judge must have been an attorney admitted to practice law in California or have served as a judge of a court of record in this state for at least 10 years immediately preceding election or appointment.”).

[98].See Ariz. Jud. Branch, supra note 96 (noting that Arizona Justices of the Peace (JPs) “[n]eed not be . . . attorney[s]”). Most justices of the peace in Arizona do not, in fact, possess law degrees. See Anne E. Nelson, Fifty-Eight Years and Counting: The Elusive Quest to Reform Arizona’s Justice of the Peace Courts, 52 Ariz. L. Rev. 533, 538–39 (2010) (“The number of current JPs with legal training is quite low. Out of the eighty-three JPs who provided information, only twenty-seven or 32% have law degrees. The law-trained JPs are highly concentrated in urban counties, with 48% of law-trained JPs presiding in Maricopa and Pima Counties.”).

[99].See Ariz. Rev. Stat. Ann. § 28-1596(D) (noting that traffic hearings are “informal and without a jury”).

[100].See Cal. Veh. Code §40901(e) (“[N]othing contained herein shall be interpreted to permit the submission of evidence other than in accordance with the law, nor to prevent courts from adopting other rules to provide for trials in accordance with the law.”).

[101].See Ariz. Rev. Stat. Ann. § 28-1552(A) (describing the civil and criminal components of Arizona’s traffic law); Cal. Veh. Code §§ 40000.1, 40000.3, 40000.5 (describing various traffic offenses as either infractions, misdemeanors, or felonies).

[102]. Cal. Gov’t Code § 71622 (West 2022); Cal. Gov’t Code § 72401(a), (c) (West 2022); Cal. Gov’t Code § 72190 (West 2022); see, e.g., Contesting a Traffic Ticket, Superior Ct. of Cal., Cnty of Alameda, https://www.alameda.courts.ca.gov/divisions/traffic/contesting-traffic-ticket#:~:text=of%20your%20request.-,Court%20Trial,witnesses%20to%20support%20your%20case [https://perma.cc/74WU-8WNM] (“The examination of facts and law will be presided over by a judge (or other magistrate such as a commissioner or judge pro tem).”).

[103].See Ariz. Rev. Stat. Ann. § 28-1553 (2022) (permitting courts to appoint Civil Traffic Hearing Officers to hear and resolve traffic disputes).

[104].For a full exposition of the consequences of lawyerless courts, see generally Carpenter et al., supra note 10.

[105].Telephone Interview with Civil Traffic Hearing Officer E (Nov. 21, 2022).

[106].Telephone Interview with Civil Traffic Hearing Officer H (Nov. 30, 2022).

[107].Telephone Interview with Civil Traffic Hearing Officer E (Nov. 2, 2022).

[108].See Telephone Interview with Civil Traffic Hearing Officer E (Nov. 22, 2022).

[109].Telephone Interview with Civil Traffic Hearing Officer A (Nov. 21, 2022).

[110].See, e.g., Telephone Interview with Civil Traffic Hearing Officer C (Nov. 21, 2022). Professor Sandefur has made this point as well in her work on access to justice. See Rebecca L. Sandefur, Elements of Professional Expertise: Understanding Relational and Substantive Expertise Through Lawyers’ Impact, 80 Am. Soc. Rev. 909, 910 (2015) (noting that the presence of lawyers “in a courtroom encourages the court to follow its own rules”).

[111].Telephone Interview with Civil Traffic Hearing Officer B (Nov. 21, 2022).

[112].Id.

[113].Telephone Interview with Civil Traffic Hearing Officer C (Nov. 21, 2022).

[114].Telephone Interview with Civil Traffic Hearing Officer F (Nov. 28, 2022).

[115].See id.

[116].Telephone Interview with Civil Traffic Hearing Officer E (Nov. 22, 2022).

[117].Telephone Interview with Civil Traffic Hearing Officer D (Nov. 21, 2022).

[118].Telephone Interview with Civil Traffic Hearing Officer F (Nov. 28, 2022).

[119].See infra notes 225–27 and accompanying text.

[120].Telephone interview with Civil Traffic Hearing Officer F (Nov. 28, 2022).

[121].See Greene & Renberg, supra note 10, at 1291 (“Using data compiled from all fifty states and the District of Columbia, this survey finds that thirty-two states allow at least some low level state court judges to adjudicate without a law degree, and indeed, there are hundreds of magistrates and justices of the peace in these states wielding substantial legal authority who have never been trained in the law.”).

[122].See Justice Courts, Ariz. Jud. Branch, https://www.azcourts.gov/AZ-Courts/Justice-Courts [https://perma.cc/GE4B-HXP4] (“The requirements to be a justice of the peace are that you be a registered voter in Arizona, reside in the justice court precinct and understand the English language. While some justices of the peace are attorneys, there is no requirement that a justice court judge be an attorney.”).

[123].See Anne E. Nelson, Fifty-Eight Years and Counting: The Elusive Quest to Reform Arizona’s Justice of the Peace Courts, 52 Ariz. L. Rev. 533, 538–39 (2010).

[124].William Glaberson, In Tiny Courts of N.Y., Abuses of Law and Power, N.Y. Times (Sept. 25, 2006), https://www.nytimes.com/2006/09/25/nyregion/in-tiny-courts-of-ny-abuses-of-law-and-power.html [https://perma.cc/8X79-MUPU].

[125].See Justin Weinstein-Tull, supra note 7, at 1053–55.

[126].See Colin A. Fieman & Carol A. Elewski, Do Nonlawyer Justices Dispense Justice?, N.Y. State Bar J. (1997), at 20 & n.2 (citing empirical research from John Paul Ryan & James H. Guterman, Lawyer Versus Nonlawyer Town Justices: An Empirical Footnote to North v. Russell, 60 Judicature 272, 280 (1977)).

[127].Glaberson, supra note 124.

[128].Id.

[129].Telephone Interview with Civil Traffic Hearing Officer B (Nov. 21, 2022).

[130].See Telephone Interview with Civil Traffic Hearing Officer D (Nov. 21, 2022).

[131].See Colo. Rev. Stat. § 13-6-501(3) (2022)

[132].Id.

[133].See generally Appendix 2.

[134].Alaska Stat. Ann. § 22.15.170(c) (2014).

[135].See Alaska Stat. Ann. § 22.15.120(a)(1), (7) (2014).

[136].See Iowa Code § 602.6405(1) (2022).

[137].See N.D. Cent. Code § 39-06.1-01 (2022); N.D. Cent. Code § 39-06.1-03 (2022); N.D. Cent. Code § 39-07-08 (2022).

[138].See S.D. Codified Laws § 16-12C-11 (2022).

[139].Fla. Stat. Ann. § 318.35 (2015).

[140].Fla. Stat. Ann. § 318.32 (2015).

[141].Ohio Traffic R. 14(A) (2022), https://www.supremecourt.ohio.gov/docs/LegalResources
/Rules/traffic/Traffic.pdf [https://perma.cc/Y3BN-UUMY].

[142].Cal. Gov’t Code § 72401(c) (2022); Cal. Gov’t Code § 72190 (2022); Cal. Gov’t Code § 71622 (2022); see, e.g., Traffic Court, Superior Ct. of Cal., Cnty. of Alameda, https://www.alameda.courts.ca.gov/divisions/traffic [https://perma.cc/Q3NV-V52E] (“The examination of facts and law will be presided over by a judge (or other magistrate such as a commissioner or judge pro tem).”).

[143].Ariz. Rev. Stat. Ann. § 28-1553 (2022).

[144].Telephone Interview with Civil Traffic Hearing Officer D (Nov. 21, 2022).

[145].Telephone Interview with Civil Traffic Hearing Officer D (Nov. 21, 2022).

[146].For three brilliant articles on state civil procedure—a crucially understudied field—see generally Norman W. Spaulding, The Ideal and the Actual in Procedural Due Process, 48 Hastings Const. L.Q. 261 (2021); Bookman & Shanahan, supra note 10; Zachary D. Clopton, Making State Civil Procedure, 104 Cornell L. Rev. 1 (2018). For important critiques of procedural simplification, as well as context for the movement toward simplification of the legal system, see Kathryn A. Sabbeth, Simplicity As Justice, 2018 Wis. L. Rev. 287, 288 (“[T]he objectives of the simplification project are incomplete and carry potential downsides.”); Colleen F. Shanahan & Anna E. Carpenter, Simplified Courts Can’t Solve Inequality, 148(1) Daedalus 128, (2019).

[147].Ariz. Rev. Stat. § 28-1596(D) (2022).

[148].Hawai’i Civil Traffic Rules 14(b) (1994), https://www.courts.state.hi.us/docs/court_
rules/rules/hctr.pdf. [https://perma.cc/4W6E-J4GE].

[149].Colo. R. Traffic Infractions 1 (2024).

[150].Colo. R. Traffic Infractions 11 (2024) (“The hearing of all cases shall be informal, the object being to dispense justice promptly and economically. The referee shall ensure that evidence shall be offered and questioning shall be conducted in an orderly and expeditious manner and according to basic notions of fairness.”).

[151].Fla. R. Traffic Ct. 6.630(l) (2016).

[152].Mass. Trial Ct. Rule VII: Unif. Rules on Civ. Motor Vehicle Infractions (b)(1) (1986).

[153].Mich. Comp. L. Ann. § 257.746(1) (2006).

[154].Ariz. Rev. Stat. § 28-1596(D) (2022).

[155].See generally Pamela K. Bookman & David L. Noll, Ad Hoc Procedure, 92 N.Y.U. L. Rev. 767 (2017).

[156].See Diego Zambrano, The Unwritten Norms of Civil Procedure, 117 Nw. U. L. Rev. 853 (2024).

[157].Telephone Interview with Traffic Judge G (Nov. 29, 2022).

[158].See generally Appendix 3. Iowa, for example, lists “Motor vehicle and transportation scheduled violations,” strictly determined by statute. See Iowa Code § 805.8A (2022).

[159].See, e.g., S.C. Code Ann. § 56-5-1520(G) (2022) (setting out penalty ranges for speeding offenses).

[160].See, e.g., Mich. Comp. L. Ann. § 257.901(2) (2006) (providing a statutory maximum for traffic infractions).

[161].Ariz. Rev. Stat. Ann. § 28-1603(A) (2022).

[162].Wash. Rev. Code Ann. § 46.63.110(1)(b) (2023).

[163].See generally Appendix 3. For an example of a state that allows their traffic judges to sentence a defendant to community service in lieu of a monetary penalty, see Fla. Stat. Ann. § 318.18(8)(b)(1)(a) (2022) (“If a person has been ordered to pay a civil penalty for a noncriminal traffic infraction and the person is unable to comply with the court’s order due to demonstrable financial hardship, the court shall allow the person to satisfy the civil penalty by participating in community service until the civil penalty is paid.”). Appendix 3 focuses on the judge’s discretion to reduce or suspend traffic fines, not fees, which can be imposed by statute, and are not necessarily waivable by the judge.

[164].See appendix 3; see, e.g., Neb. Rev. Stat. § 60-691 (2022) (“When a person has been convicted in any court in this state of any moving traffic offense, the court may, in addition to the penalty provided by law for such offense and as a part of the judgment of conviction or as a condition of probation, require such person, at his or her expense if any, to attend and satisfactorily complete a course of instruction at a driver improvement school.”).

[165].See id.; see, e.g., Tenn. Code Ann. § 55-10-301 (2021) (“Any person violating any of the provisions of chapters 8 and 9 of this title and parts 1-5 of this chapter may be required, at the discretion of the court, to attend a driver education course approved by the department of safety in addition to or in lieu of any portion of other penalty imposed.”).

[166].See Ind. Code § 9-30-3-12 (2022) (“[A]ny court may suspend one-half (1/2) of each applicable court cost (including fees) for which an individual is liable due to a traffic violation if the individual enrolls in and completes a driver safety program or a similar school conducted by an agency of the state or local government.”).

[167].See Ariz. Rev. Stat. Ann. § 28-3392 (2022).

[168].See Ariz. Rev. Stat. Ann. § 28-3394 (2016).

[169].See, e.g., Frequently Asked Questions (FAQ), Or. Jud. Branch, https://www.courts.oregon.gov/courts/douglas/programs-services/Pages/traffic-violations.aspx [https://perma.cc/2KC2-CS77] (stating that a reduction in fine is “possibl[e] . . . based upon driving history”).

[170].S.D. Codified L. § 23-1A-22 (2022) (emphasis added).

[171].See supra Part II.B.

[172].See Telephone Interview with Civil Traffic Hearing Officer B (Nov. 21, 2022).

[173].See generally Telephone Interview with Civil Traffic Hearing Officer C (Nov. 21, 2022); Telephone Interview with Civil Traffic Hearing Officer H (Nov. 30, 2022).

[174].Telephone Interview with Civil Traffic Hearing Officer E (Nov. 22, 2022) (“You have to ask good questions. You get more involved in trying to find out the truth of the matter, you’re the finder of fact. With attorneys, you step back and let them represent.”).

[175].Carpenter et al., supra note 10, at 523–24.

[176].Discretion is, of course, not unique to traffic judges. Judges of all kinds possess varying degrees of discretion, which raises a number of thorny prudential and jurisprudential questions. See generally Richard L. Marcus, Slouching Toward Discretion, 78 Notre Dame L. Rev. 1561 (2003) (summarizing the debate and providing a typology of judicial discretion).

[177].See 80-year-old judge becomes unlikely internet star, CBS News (Aug. 17, 2017), https://www.cbsnews.com/news/frank-caprio-80-year-old-judge-becomes-internet-star-providence/ [https://perma.cc/7L3C-VAB2] (“An 80-year-old judge is an unlikely viral video sensation, but somehow Municipal Court Judge Frank Caprio has been winning hearts and clicks on Facebook with a mix of compassion, humor and a rotating cast of the poor souls who have been ticketed in the city of Providence. Videos featuring the kind-hearted judge have now reached hundreds of millions of views.”).

[178].See generally Another 96 Year old speeder & Her boyfriend is a bum!, YouTube (July 31, 2019) https://www.youtube.com/watch?v=VJ7pCB4g3sU [https://perma.cc/ULX5-2NRT].

[179].Id.

[180].See Ann Casano, This 80-year-old Judge is Going Viral for his Incredibly Heartwarming Verdicts, Ranker (Sept. 23, 2021), https://www.ranker.com/list/judge-with-great-verdicts/anncasano [https://perma.cc/HWY8-5525].

[181].Telephone Interview with Civil Traffic Hearing Officer A (Nov. 21, 2022).

[182].Telephone Interview with Civil Traffic Hearing Officer D (Nov. 21, 2022).

[183].Carpenter et al., supra note 10, at 558.

[184].Id. at 559.

[185].Cf. Jeremy Fogel, Judicial Education and the Human Side of Judging, 49 Litig. 6, 7 (2022) (“Most judges work hard to provide a fair process and reach the correct result in the matters that come before them, but few have the time or inclination to step back and consider how what they’re doing is embedded in a larger social context.”).

[186].    For foundational work on procedural justice and fairness, see generally E. Allan Lind & Tom R. Tyler, The Social Psychology of Procedural Justice (1988); Tom R. Tyler, Why People Obey the Law (2006).

[187].Telephone Interview with Civil Traffic Hearing Officer D (Nov. 21, 2022).

[188].Telephone Interview with Traffic Judge G (Nov. 29, 2022).

[189].Telephone Interview with Civil Traffic Hearing Officer H (Nov. 30, 2022).

[190].See Telephone Interview with Civil Traffic Hearing Officer E (Nov. 22, 2022).

[191].Telephone Interview with Civil Traffic Hearing Officer H (Nov. 30, 2022).

[192].See Telephone Interview with Traffic Judge G (Nov. 29, 2022).

[193].Id.

[194].Telephone Interview with Civil Traffic Hearing Officer A (Nov. 21, 2022).

[195].Telephone Interview with Civil Traffic Hearing Officer F (Nov. 28, 2022).

[196].See Ariz. Rev. Stat. Ann. § 28-1603(A) (2022).

[197].See infra notes 225–27 and accompanying text.

[198].Michael W. McConnell, Federalism: Evaluating the Founders’ Design, 54 U. Chi. L. Rev. 1484, 1493 (1987). McConnell relies on early sources for his analysis and notes that this value of federalism “was well understood by the founding generation. A noted pamphleteer, ‘The Impartial Examiner,’ put the point this way: ‘For being different societies, though blended together in legislation, and having as different interests; no uniform rule for the whole seems to be practicable.’” Id. at 1493-94.

[199].501 U.S. 452, 458 (1991).

[200].Weinstein-Tull, supra note 7, at 1095.

[201].See supra Part II.D.

[202].Weinstein-Tull, supra note 7, at 1097.

[203].See Herbert M. Kritzer, What Do Americans Want in Their State Judges?, 105 Judicature 49 (2021).

[204].Id. at 53.

[205].Id.

[206].See id.

[207].See supra notes 187–89 and accompanying text.

[208].Cathy Lesser Mansfield has written that the idea of the lay judge as a “wise and experienced member of the community, unrestrained by the formality of court rules, and informed by his knowledge of local custom,” Cathy Lesser Mansfield, Disorder in the People’s Court: Rethinking the Role of Non-Lawyer Judges in Limited Jurisdiction Court Civil Cases, 29 N.M. L. Rev. 119, 142 (1999), is largely a myth, and has argued that “even the most sympathetic non-lawyer judge is not better equipped to protect the interests of the common man than a lawyer judge.” Id. at 158. Greene and Renberg have also critiqued this idea of the community judge, first because “the notion of a ‘community’ is complex on the ground in 2021.” Greene & Renberg, supra note 10, at 1321. Many lay judges are former law enforcement and probation officers, who are not necessarily representative of the larger community. Id. at 1321–22. Second, Greene and Renberg question whether lay judges can truly understand the legal complexity that can arise in even everyday sorts of cases. Id. at 1322–23.

[209].See Deborah L. Rhode, Access to Justice, 69 Fordham L. Rev. 1785, 1816 (2001) (“[C]ourts, bar associations, law schools, legal aid providers, and community organizations must work together to develop comprehensive, coordinated systems for the delivery of legal services.”).

[210].See Carpenter et al., supra note 10, at 518 (“Legal scholars concerned with access to justice have consistently argued for an end to traditional judicial passivity in favor of an active, interventionist role in lawyerless dockets.”).

[211].Rebecca L. Sandefur, Access to What?, 148 Daedalus 49, 51 (2019).

[212].This standard can vary by state, depending on whether traffic violations occur in the civil or criminal context. In Arizona, where this interviewee practices, most traffic court violations are civil matters.

[213].Telephone Interview with Civil Traffic Hearing Officer F (Nov. 30, 2022).

[214].Id.

[215].This concern is a common one in the federalism/decentralization world: That leaving responsibility to decentralized institutions makes it more likely that certain processes will dip below rights floors. See generally Akhil Reed Amar, Five Views of Federalism: “Converse-1983” in Context, 47 Vand. L. Rev. 1229, 1231–32 (1994) (describing the “nationalist perspective” in federalism, which sees states as wrongdoers).

[216].ACLU of North Carolina, At All Costs: The Consequences of Rising Court Fines and Fees in North Carolina 5 (2016), https://www.acluofnorthcarolina.org/sites/default/files/field_documents/
aclu_nc_2019_fines_and_fees_report_17_singles_final.pdf [https://perma.cc/5UHH-VYUG]. For a different perspective on North Carolina judges that describes the problems that arise when judges have too little discretion, see Jennifer M. Lechner & B. Leigh Wicclair, supra note 57, at 212 (“The North Carolina Division of Motor Vehicles must revoke a person’s license if that person fails to appear in traffic court or fails to ‘pay a fine, penalty, or court costs ordered by the court.’”).

[217].Carpenter et al., supra note 10, at 539 (“The judicial reform vision championed by scholars, court guidance, and access to justice advocates emphasizes the judges’ role in providing explanations and sharing information with litigants. However, such behavior was uncommon in our data.”). For a different perspective on procedural discretion, see Annie Decker, A Theory of Local Common Law, 35 Cardozo L. Rev. 1939, 1979 (2014) (noting that “lower courts tend to be more informal in practice, and informality can benefit parties”).

[218].See generally Robert J. Smith & Justin D. Levinson, The Impact of Implicit Racial Bias on the Exercise of Prosecutorial Discretion, 35 Seattle U. L. Rev. 795 (2012) (describing how the existence of prosecutorial discretion can create opportunity for implicit racial bias in the criminal justice system).

[219].Elizabeth L. MacDowell, Reimagining Access to Justice in the Poor People’s Courts, 22 Geo. J. on Poverty L. & Pol’y 473, 485–87, 495 (2015).

[220].Id. at 495–96.

[221].Id. at 495; see also Llezlie Green, Wage Theft in Lawless Courts, 107 Calif. L. Rev. 1303, 1307 (describing small claims courts as “lawless” courts that “often fail to consider the specific statutory protections afforded by the statutes and revert to simplified breach of contract analyses that ultimately disfavor workers”).

[222].MacDowell, supra note 219, at 495.

[223].Id. at 496.

[224].See Weinstein-Tull, supra note 7, at 1064–72 (describing the attenuated relationship between state court administrative offices and local courts).

[225].I do not yet know why this is so. In some cases, the stakes may be too small to motivate litigants to appeal. But in others, where the stakes are high, there are likely other obstacles, like the availability of counsel, a lack of understanding that an appeal is even available, a lack of knowledge about how to initiate an appeal, or perhaps even a concern that no technical legal error exists to be appealed.

[226].Professors King and Heise estimate that approximately eight misdemeanor convictions per ten thousand are appealed to higher state courts, for example. See Nancy J. King & Michael Heise, Misdemeanor Appeals, 99 B.U. L. Rev. 1933, 1938, 1942 (2019). For a more global figure, in 2015, litigants appealed 185,000 cases from local courts, representing only 0.2% of the 86.2 million cases filed in state trial court that same year. Nat’l Ctr. for State Cts. & Conf. of State Ct. Adm’rs, Examining the Work of State Courts: An Overview of 2015 State Court Caseloads 3, 18 (2016), https://www.courtstatistics.org/__data/assets/pdf_file/0028/29818/2015-EWSC.pdf [https://
perma.cc/2BLZ-BR3K].

[227].Annie Decker reports that 1.2% of cases from hyperlocal Texas courts (justice of the peace and county courts) are appealed, for example, and 1.6% of cases in similar Montana courts are appealed. See Decker, supra note 217, at 1969–70.

[228].See Weinstein-Tull, supra note 7, at 1093 (noting that institutions that experience both diversity and obscurity are “dangerous” because they occupy “a space where we expect variance but cannot monitor it without significant cost or political will”).

[229].Cf. Nicole Summers, The Limits of Good Law: A Study of Housing Court Outcomes, 87 U. Chi. L. Rev. 145 (2020) (describing how, in the context of housing courts, the existence of tenant-friendly law does not always result in tenant-friendly outcomes, even when it should).

[230].See Beth A. Colgan, Lessons from Ferguson on Individual Defense Representation as a Tool of Systemic Reform, 58 Wm. & Mary L. Rev. 1171, 1183–205 (2017).

[231].This is a finding that I intend to elaborate on and explore in future work.

[232].Telephone Interview with Civil Traffic Hearing Officer A (Nov. 21, 2022).

[233].Telephone Interview with Civil Traffic Hearing Officer B (Nov. 21, 2022).

[234].Telephone Interview with Civil Traffic Hearing Officer F (Nov. 28, 2022).

[235].Telephone Interview with Civil Traffic Hearing Officer H (Nov. 30, 2022).

I was surprised by the resistance to questions of race discrimination by the judges I spoke with, given the prevalence of research demonstrating the role of race in the work of traffic policing. See generally supra Part I.A.

[236].See Maria Ponomarenko, Legislative Administration, 2021 Wisc. L. Rev. 1231, 1232 (2021) (describing how “at the local level, many of the entities responsible for ‘administering’ various statutory schemes are not in fact agencies at all” and “[i]n jurisdictions large and small, local legislative bodies, including municipal councils and county boards, engage in a great deal of ‘administrative’ activity” (emphasis added)).

[237].See Maria Ponomarenko, Rethinking Police Rulemaking, 114 Nw. U. L. Rev. 1, 5 (2019) (describing how police rulemaking looks very different from federal administrative rulemaking).

[238].See Bookman & Shanahan, supra note 10, at 1187 (“While the state/federal divide is a logical one for studying many subjects, including some civil procedure stalwarts like subject matter jurisdiction, the lawyered/lawyerless distinction provides additional and important insights about American civil justice and procedure.”).

[239].See Natapoff, supra note 9, at 1037–40.

[240].See Minow, supra note 54, at 297.

[241].Cf. Justin Weinstein-Tull, The Experience of Structure, 55 Ariz. St. L.J. 1513 (2024) (describing how refining categories is important in shaping the way we see legal problems and issues). This Section certainly does not describe all possible reforms. In particular, it does not describe potential statutory reform that might constrain traffic judges or the general idea of traffic court abolition. See generally Brendan D. Roediger, Abolish Municipal Courts: A Response to Professor Natapoff, 134 Harv. L. Rev. F. 213 (2021) (advocating for the abolition of municipal courts, rather than their reform).

[242].By “nonprecedential courts,” I mean courts that do not take precedent into account, not courts that issue nonprecedential opinions. For important research on those kinds of courts, see generally Merritt E. McAlister, “Downright Indifference”: Examining Unpublished Decisions in the Federal Courts of Appeals, 118 Mich. L. Rev. 533 (2020).

[243].See supra Part II.D.

[244].See generally supra Part II.B.1.

[245].See supra notes 226–27.

[246].Lauren Hall & Catlin Nchako, A Closer Look at Who Benefits from SNAP: State-by-State Fact Sheets, Ctr. on Budget & Pol’y Priorities, https://www.cbpp.org/research/food-assistance/a-closer-look-at-who-benefits-from-snap-state-by-state-fact-sheets [https://perma.cc/H8QR-KSUX] (updated Feb. 13, 2023).

[247].See Harry H. Porter, The Traffic Court System, 31 Am. Inst. Crim. L. & Criminology 401, 406 (1940).

[248].See Weinstein-Tull, supra note 7, at 1064-65.

[249].See id. at 1064–72 (describing the nature of state oversight of local courts).

[250].Cf Michael C. Pollack, Courts Beyond Judging, 46 B.Y.U. L. Rev. 719, 778–79 (2021) (suggesting a form of administrative review of name changes performed by judges).

[251].See, e.g., Joanna Bisgaier & Karin V. Rhodes, Auditing Access to Specialty Care for Children with Public Insurance, 364 New Eng. J. Med. 2324, 2325–26 (2011) (reporting findings from a “secret shopper”-style study of access to private specialty clinics that compared acceptance of Medicaid insurance versus private insurance).

[252].Mitch Mirkin, ‘Mystery shopper’ model being used to boost VA care, U.S. Dep’t of Veterans Affs., Off. of Rsch. & Dev. (Mar. 21, 2018), https://www.research.va.gov/currents/0318-Mystery-shopper-model-being-used-to-boost-VA-care.cfm [https://perma.cc/EU8C-7K4T].

   [253].See Genevieve M. Kenney, Kathy Gifford, Jane Wishner, Vanessa C. Forsberg, Amanda I. Napoles & Danielle Pavliv, Urb. Inst., Proposed Medicaid Access Measurement and Monitoring Plan 28 (2016) https://www.urban.org/sites/default/files/
publication/88081/2001143-medicaid-access-measurement-and-monitoring-plan_0.pdf [https://perma.
cc/4WYG-UH2X].

[254].For a foundational account of the need for quality assurance programs in administrative adjudication, see Jerry L. Mashaw, The Management Side of Due Process: Some Theoretical and Litigation Notes on the Assurance of Accuracy, Fairness, and Timeliness in the Adjudication of Social Welfare Claims, 59 Cornell L. Rev. 772, 775 (1974) (“Due process in the social welfare context therefore requires redefinition to include management processes which will tend to assure the accuracy of claims adjudications.”). But see David Ames, Cassandra Handan-Nader, Daniel E. Ho & David Marcus, Due Process and Mass Adjudication: Crisis and Reform, 72 Stan. L. Rev. 1, 7 (2020) (describing how the quality review process in the Board of Veteran’s Appeals has “no causal effects” on the quality of the Board’s decision-making).

[255].Wayne A. Logan & Andrew Guthrie Ferguson, Policing Criminal Justice Data, 101 Minn. L. Rev. 541, 599 (2016) (quoting U.S. Bureau of Just. Stat., Compendium of State Priv. and Sec. Leg.: 2002 Overview 7 (2003)).

[256].See generally Mariano-Florentino Cuéllar, Auditing Executive Discretion, 82 Notre Dame L. Rev. 227 (2006).

[257].See Nicole Galloway, Off. of the Mo. State Auditor, Findings in the Audit of Sixteenth Judicial Circuit - City of Sugar Creek Municipal Division 4 (2018), https://auditor.mo.gov/AuditReport/ViewReport?report=2018039 [https://perma.cc/84AD-RXS4] (providing an evaluation of accounting procedures and reporting procedures in one judicial district); State of Ohio Off. of the Auditor, Youngstown Municipal Court, Performance Audit (1999), https://ohioauditor.gov/auditsearch/Reports/1999/youngstown_municipal_court_performance_
audit_99-mahoning.pdf [https://perma.cc/LF9G-HXLM] (auditing the operations of the bailiff’s department and a computer accounting system in one municipal court).

[258].See supra notes 226–27 and accompanying text.

[259].See Carpenter et al., supra note 10, at 511–12.

[260].Mari J. Matsuda, Looking to the Bottom: Critical Legal Studies and Reparations, 22 Harv. C.R.-C.L. L. Rev. 323, 326 (1987).

[261].See Weinstein-Tull, supra note 241 (describing how bottom-up thinking about human experience in constitutional law calls into question existing categorical thinking and suggests novel jurisprudential reforms); Andrew Hammond, Pleading Poverty in Federal Court, 128 Yale L.J. 1478, 1526–29 (2019) (proposing a bottom-up vision for civil procedure); Michael C. Pollack, Sidewalk Government, 122 Mich. L. Rev. (forthcoming 2024) (examining the law of “one of the most used, least studied spaces in the country: the sidewalk,” and proposing a municipal agency to govern these spaces).