Law in Contemporary Society

Some of the greatest evil lies in the least romantic systems of human governance.

Take, for instance, the pile of papers sitting on a judge’s desk and awaiting their final approval. “People seeking this, people seeking that. Trivialities. They’ll have to wait a few months. There are quite a lot of cases to settle these days.”

Of course, time is a relative concept. A few months may not be long enough for more than a couple cobwebs to grow on those stacks of paper, but how long should someone be expected to wait while their identity is unwillingly and unnecessarily, but still legally, attached to that of another person? Put more simply, how long should it take for a judge to approve an uncontested divorce?

Normative questions aside, our legal system’s demonstrated response is woefully inadequate. Unsurprisingly, the available data is sparse, but in Manhattan the expected waiting time for a judge to sign off on completed uncontested divorce papers is around 3 months. In other boroughs, it’s even longer.

A few assumptions. To most, marriage is a financial and legal contract with tremendous personal and traditional consequences. Many people form large parts of their personal identity around marriage status. An unhealthy marriage can have tremendous negative consequences, and divorces can be emotionally harrowing.

Some further exposition. An uncontested divorce is often the cheapest and easiest way to get out of a marriage. In an uncontested divorce, there are no contested legal issues between divorcing parties (such as child custody or division of assets), and each party has either consented or failed to respond to the divorce. No court appearance is necessary beyond paper filings. That is not to say that uncontested divorce is particularly cheap or easy – arcane legal forms and associated fees present substantial barriers. But as I learned working with a non-profit on a project in the area, an uncontested divorce is often the best option for survivors of domestic abuse seeking to end a marriage without litigation.

An uncontested divorce is a win for society. It allows freely consenting adults to reassert their independent identities without putting significant strain on the legal system. Which begs the question: why does it take so long for a judge to sign the final papers?

The first and most troubling response goes something like this: “It is by design, and this makes good sense. Marriage is serious business, and people should know what they’re getting themselves into before they get married. And if they are getting divorced, they should have some time to think about it before it goes through.”

I’ll dispose of this stilted worldview quickly. This response completely disregards and in fact encourages the very real toll and even danger that each day of marriage can present for parties seeking divorce. It also fails to consider the extended time it takes to complete divorce papers, and the 30 days a spouse has to respond to or contest the filing of uncontested divorce papers. A system that actively presents unnecessary and categorical barriers against the free expression of self-identity in the face of real danger must be reformed.

But the system may have a less cynical response: “Judges are busy! If we could get through all these papers today, we would. But there are so many papers, and we just can’t afford to make any mistakes.”

I’ll start by conceding without further analysis that judges really are quite busy, and that there really are a lot of uncontested divorce papers, all of which are entirely necessary and which must be thoroughly fact-checked. Still, in this scenario, what value is a judge adding that they need to be the one to read through every page and sign the final judgment? A judge is not likely to be concerned with typos, and substantive issues in uncontested divorce cases are few and far between. Certainly this type of review is not a good use of time for the judge, and any performative legal authority that their final signature might bring could be functionally replaced by a standard stamp.

I propose two possible solutions.

First, courts could manually staff up to address the problem. Bureaucratic realists would be quick to point out that this would require an increase in funding or a logistical rearrangement of staff responsibilities in each office. While centralizing review processes across localities could certainly minimize these costs and might actually created efficiency in the long run, I will conclude this proposal with my conviction that any taxpayer dollar in service of eliminating bad and unwanted marriages is a dollar well spent.

Second and more interestingly, courts could simply let machines do the work. While further research would be illuminating, common sense would dictate that automated document review of this sort is easily achievable. A machine is certainly not less likely to miss a grievous error in an uncontested divorce file, and any discrepancies could be singled out for targeted human review. Uncontested divorce filings are almost certainly not the only type of court document that could benefit from this automation. While upfront costs to a system like this might be substantial, it would almost certainly save money in the long run.

It is difficult to imagine how this type of technology would present any of the moral threats that a machine might if it were, say, sentencing someone to time in jail based on set input factors. Nonetheless, there is a reason why the legal system is so resistant to embracing this type of automation. It presents an existential threat to the concept that the “legal elite” is the only social force you can turn to with the biggest problems in your life. This is a group both human (judges, clerks, lawyers) and inscrutable (black robes, Latin phraseology, unending waiting times).

In order to address the seemingly innocuous evils at the heart of the legal system, we must be willing to give up the egoistic and self-serving vision of the legal elite as we know it.

-- ColinHenderson - 28 Feb 2020



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r5 - 28 Feb 2020 - 22:25:35 - ColinHenderson
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