In vast numbers of debt-collection cases, defendants never appear. Courts then routinely issue default judgments, often rubber stamping complaints with little or no examination of the underlying facts, on the implied justification that absent defendants have waived their right to a hearing or effectively conceded to the plaintiff’s case. Many other reasons likely cause these absences, however, and potentially meritorious defenses are never raised. Plaintiffs, meanwhile, are predominantly repeat-player debt buyers whose service efforts and proof of claim are sometimes inadequate. The resulting judgments can have devastating effects on people’s credit, employment, and housing, reflecting and exacerbating social, economic, and racial inequality.
Reforms to facilitate defendants’ participation, for example, by improving notice, service, and access to legal advice, are essential to reducing rates of meritless default judgments. But even with such efforts, high rates of defendant non-appearance are likely to persist and to create challenges for the American adversarial system. On closer examination, default procedures reveal flaws in relying on participation in an adversarial dispute as the key to fair process. Courts must reconceptualize their task to achieve just, as well as accurate, outcomes that encourage and respect defendants’ participation but also function in their absence. State courts are ripe for this kind of reform. Indeed, some states have already begun.
This Article draws on a broad set of sources—including procedural rules, case law, interviews, and empirical studies—to explore, analyze, and critique U.S. default procedures. It uses this analysis to reevaluate the role of participation in procedure, the social costs of having too much or not enough procedure, and the possibility of making courts too easily accessible. It then considers how these theoretical contributions can inform ongoing reform efforts.