UMKC Law Review


Judges are ordinarily thought of as deciders of a specific sort: people who apply the rule of law to resolve disagreements between the parties appearing before them. But in every state, judges do far more. They are charged by state statutory or constitutional law with a range of quasi-administrative, quasi-legislative, and quasi-executive law enforcement functions. These roles raise a number of theoretical and practical concerns. In many states, though, legislatures have gone even further. They have either wholly delegated significant policymaking power to state court judges or have sat idle while those judges have assumed the mantle of functions that no state law ever gave them. Specifically, judges in states across the country have been designing and establishing specialized alternative courts like drug treatment courts, domestic violence courts, veterans courts, girls courts, and the like, all with either the most general of legislative authorization or with no legislative authorization at all. In this sense, judges have become deciders of a different sort-determining their own power, which criminal defendants will receive "special(ized)" treatment, and which will not, and how those efforts will be evaluated. Judges have become deciders of the very structure of a branch of state government.

My focus is on the interaction between these institutions and the rest of state government. If we are going to have specialized courts, who should make the decision to establish them? Who should design their structures, set their goals, and decide where they should operate? Who should oversee them? This essay argues that the answer to all of these questions is: state legislatures, at least in the first instance. While these judges ought to be applauded for their efforts and for devoting their energies to addressing an important social problem they encounter in their jobs every day, it is time for state legislatures to roll up their sleeves, to take a greater hand in designing these institutions with the help of subject-matter experts, to make them uniform, to oversee them, and to responsibly fund them. It is time for legislatures, rather than judges, to legislate.