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California Rent-a-judge Experiment - Constitutional and Policy Considerations of Pay-as-you-go Courts

NCJ Number
Harvard Law Review Volume: 94 Issue: 7 Dated: (May 1981) Pages: 1592-1615
Date Published
24 pages
The use of referees, as presented in one California statute, has several constitutional and institutional problems that make it an unsatisfactory solution to the problem of overcrowded dockets and, hence, an unsuitable model for others to follow.
In California, a reference procedure allows litigants to bypass the formal court system; cases are tried before a referee selected and paid by the litigants and empowered by statute to enter decisions having the finality of trial court JUDGMENTS. Advantages of full reference trials include speed, the freedom to select the referee who has particular experience or expertise in the subject matter of the litigation, the secrecy of private hearings, and the potential to avoid the sort of compromise verdict that arbitration can produce. Finally, referee trials may contribute to a reduction in the total dispute-resolution cost to society. However, trials conducted by privately paid judges raise issues of equal protection and due process. The use of referees paid by the parties, in effect, creates two classes of litigants: the wealthy who can afford the price of a referee and the poorer who cannot. Moreover, the use of referees may hinder the future development of the law to allow possibly important public issues to be litigated in a completely private context. A chart presents the range of possible reference procedures by State; 119 footnotes are included.