This Article proposes court pluralism as a new theory for analyzing the role of the justice system in addressing domestic violence. It argues that a systemic view of the justice system is essential to developing coherent reform strategies, and lays out the foundation for taking into account the unique functions of civil and criminal justice in domestic violence cases. In doing so, the Article challenges the one-dimensional characterization of a fragmented court system as bad for victims of domestic violence that dominates legal scholarship, and shows that court fragmentation can be an opportunity and potential source of protection from systemic problems in the justice system. This more complete understanding of the significance of fragmentation in the justice system is especially important given current efforts to merge essential civil and criminal court functions within single, integrated domestic violence courts. The Article explores claims for integrated courts and argues that the value of court pluralism is overlooked.
Part I introduces the problem of integrated courts in a pluralistic court system. Part II examines the normative function of criminal courts in relation to domestic violence cases and contrasts the remedies available to victims in criminal and civil courts. Part III critiques the rationale for integrated domestic violence courts from the standpoint of litigation strategy, and identifies alternative avenues for system reform. This Part also examines the ways in which integrated courts compromise the autonomy-enhancing functions of civil courts.
Part IV shows that despite the advantages of civil courts for victims, the characterization of civil justice as relatively unproblematic is inaccurate, and revisits the normative role of the criminal courts. This Part demonstrates that the functionality of criminal courts is compromised by persistent process failures in dealing with domestic violence, and shows both the synergy between defendants’ rights and victims’ needs, and the inadequacy of evaluating domestic violence policies without taking court pluralism into account. This Part argues that, given the risks and lack of benefits to victims of integrating criminal and civil court functions, this reform strategy should be reconsidered in light of its impact on court pluralism.
Part V, the conclusion, urges reformers to work to identify and improve the distinct functionalities of civil and criminal courts for victims of domestic violence while maintaining the benefits of court pluralism, and identifies priorities for future research.
20 Tex J. Women & L. 95 (2011)
MacDowell, Elizabeth L., "When Courts Collide: Integrated Domestic Violence Courts and Court Pluralism" (2011). Scholarly Works. Paper 682.