Nora Freeman Engstrom

In Enterprise Justice: Tyler Technologies and the Privatizing Court, forthcoming in the Yale Law Journal, Todd Venook pulls back the curtain on Tyler Technology, an obscure company headquartered in Plano, Texas that provides the technology to the courts that serve a majority of Americans.

Todd begins by explaining that, however belatedly, courts have entered the digital age, and, faced with a classic “make-or-buy” decision when it comes to building out their data infrastructure, courts have mostly opted for the latter. Having done so, hundreds of courts have inked contracts with Tyler—and, pursuant to these contracts, Tyler performs a range of functions, central to courthouse operations. Tyler’s tools facilitate e-filing, manage calendars, accept payments, store filings, and even (sometimes) run online dispute resolution (“ODR”) platforms. In 2025, in the majority of states, justice is delivered (or not) through Tyler’s tools.

After cataloging the products that Tyler offers and inventorying Tyler’s grip over the relevant marketplace, Todd considers the implications of Tyler’s dominance. Filings—which is to say, pleadings, motions, judgments—are courts’ lifeblood. They are the grist for the courthouse mill. And Tyler, Todd shows, controls these filings. What follows?

Todd raises several concerns—but here I’ll highlight four. One of these is fully fleshed out in Enterprise Justice. The others, I think, would benefit from somewhat further study.

The first involves market concentration. Tyler has cornered the market on courthouse technology, and, as any user of Google or Apple well knows, that cornering is, itself, concerning. As Tyler eclipses competitors, courts that are in the market for case management and filing systems have fewer options to choose from, and that reality brings with it a host of problems that typically flow from monopoly status. Consumers (here, courts) may ultimately face higher prices and lower quality. Without competition to drive innovation, Tyler may become complacent and less incentivized to invest in R&D. And we ought to worry about entrenchment. Given Tyler’s stranglehold, will new competitors be able to get a foot in the door?

Bundling exacerbates this concentration concern. As Todd shows, Tyler combines its market-dominating case-management software with other offerings, such as its ODR platform. But where those other offerings are not profit centers, they remain woefully underdeveloped, even while their very presence stymies other would-be providers.

A second concern involves what Todd calls “homogenization.” Todd explains that Tyler “serves as a hub of a hub-and-spoke policy replication mechanism, created through individual contracts.” (P. 64.) And this, Todd points out, results in a striking “convergence of policy across state courts.” Id.

This convergence, Todd suggests, is worrisome. He points out that, under the hoary “laboratories of democracy” idea, state-level experimentation is supposed to spur smart innovation because state X can look over state Y’s shoulder, see what works and what doesn’t, and learn from past mistakes. However, when states just contract with a single provider, those federalism advantages dissipate. The result, Todd says, is similarity across states, without “concomitant shared oversight or purposeful unity.” (P. 66.)

This concern is powerful, as far as he goes, but, in future work, Todd might spend a bit more time studying the benefit side of the coin. After all, state-level experimentation isn’t inevitably beneficial; instead, it has a “Jekyll-and-Hyde” quality.¹ After all, some state efforts to go it alone fizzle.

More importantly, one person’s worrying homogenization is another person’s salutary standardization. And particularly when it comes to court filing systems, standardization comes with various benefits. Indeed, we at Stanford Law School’s Rhode Center launched the Filing Fairness Project in 2021, at least in part, to promote standardization between state court filing systems—reckoning that, only once there’s sufficient inter-state standardization can tech providers achieve the scale they need to invest in high-quality offerings.² Thus, this story, like so many others, is a tale of tradeoffs, and the question becomes whether the resulting standardization is on balance troublesome or beneficial.

A third concern involves accountability. Litigants in a number of jurisdictions have reported problems caused by failures in Tyler’s products, including glitches that have led to wrongful rearrests, prolonged incarceration, and leaks of attorney disciplinary records.

In one notable 2016 case, for instance, plaintiffs in Shelby County, Tennessee claimed that, thanks to a Tyler Tech snafu—specifically, Tyler’s botched installation of a program to track “inmates’ posting of bond, pretrial probable cause determinations, and the release of arrestees”—they were unlawfully detained “beyond the dates set for their release.”³ The court denied Tyler’s motion to dismiss, finding that “Tyler could reasonably have foreseen that negligently installing, designing, or integrating [its] . . . software would lead to inmates being detained beyond their proper term.⁴

Todd points out that someone should answer for this egregious oversight. But who? Tyler? How about the court that delegated key tasks to a government contractor? If Tyler is on the hook, is the company akin to a state actor, entitled to government immunity for certain tort claims?⁵ If so, what kind of immunity?⁶

This accountability point brings up a final—and broader—issue that Todd does not zero in on, but might, in future work. Here, I’m referencing the fact that Tyler’s court takeover isn’t just important in its own right. It also fits into, and enriches, a broader literature concerning governmental contracting and private entities’ incursions into (previously) public domains.

Recent decades have seen an explosion in private contracting, as governmental actors now contract out a wide range of governance tasks and services that were previously performed in-house. Nowadays, it is frequently private contractors (not public employees) who pick up our trash, police our communities, run our prisons, and even fight our wars.⁷

Much ink has been spilled evaluating the benefits and costs of this delegation, and the cost side of the ledger reflects a wide range of concerns. Some scholars worry about responsibility—that “legal and moral norms can never be fully imposed on private contractors because private firms lack the democratic accountability of public agencies.”⁸ Others fret about transparency—the fact that, because contractors operate in a FOIA-free zone, “[t]he more government work is taken over by private contractors, the less accessible project information is to the public.”⁹ Still others home in on conflicts—the fact that, “[w]hile government employees are subject to strict ethical standards, most of these standards do not apply to contractor personnel.”¹⁰ Sitting atop many of these concerns is a final and more general worry well-articulated by Martha Minow: As civil servants are systematically replaced by private employees, ultimately answerable to corporate shareholders, a steady “dilution of public values” results.¹¹

What unites this broad literature is that scholars tend to write about contractors who have stepped in for—and are doing the work of—the executive branch. What Todd is zeroing in on, however, is subtly different. Tyler Tech does not contract with the executive. It’s doing the work of courts. Now, it could be that this wrinkle isn’t meaningful—that, whether for the executive or judiciary, the risks of privatization remain similar. But I think that, in future work, Todd would benefit from considering Tyler Tech’s rise to dominance through this particular lens.

Enterprise Justice is beautifully written, deeply researched, and richly generative. In it, Todd reveals something important, that had, until now, been hiding in plain sight.

1. Michael A. Livermore, The Perils of Experimentation, 126 Yale L.J. 636, 638-39 (2017) (reckoning with the “Jekyll-and-Hyde nature of policy experimentation” and contending that, policy experimentation “can be a mixed blessing”).
2. See Filing Fairness Project, https://filingfairnessproject.law.stanford.edu/filing-fairness-toolkit/ (explaining that “[p]art of the explanation for the current [problematic] filing technology landscape is the decentralized nature of our civil courts”); Benjamin Welton, Unveiling a New Toolkit to Modernize Civil Court Filing Tools, Legal Aggregate, Dec. 5, 2023 (explaining that the Filing Fairness Toolkit “recommends that courts standardize their filing system infrastructures”).
3. Third Amended Complaint (Doc. 103), Turnage v. Oldham, No. 16-2907 (July 30, 2018).
4. Turnage v. Oldham, 346 F. Supp. 3d 1141, 1156 (W.D. Tenn. 2018).
5. For discussion of when a contractor is entitled to state or local government entity immunity, see, e.g., Showers Appraisals, LLC v. Musson Bros., 835 N.W.2d 226, 239 (Wis. 2013) (explaining that “immunity will be extended to governmental contractors only where the contractor acted as a ‘servant’ for the purposes of the challenged conduct”).
6. Tyler’s work involves court operations and processes, but even if Tyler “counts” as the government, Tyler should not be entitled to judicial immunity, as its work does not tend to “involve the resolution of a dispute between parties, the direct administration of criminal laws, or the direct adjudication of private rights.” Restatement Third, Torts: Miscellaneous Provisions (formerly Concluding Provisions) § 9, Comment e (Am. L. Inst., Tentative Draft No. 1, 2022).
7. See Martha Minow, Outsourcing Power: Privatizing Military Efforts and the Risks to Accountability, Professionalism, and Democracy, in Government by Contract, at 110, 112 (Jody Freeman & Martha Minow eds., 2009) (explaining that, in Afghanistan, private contractors “served in paramilitary units with the CIA, maintained combat equipment, provided logistical support, and worked on surveillance and targeting”).
8. Edward Rubin, Book Review, The Possibilities and Limitations of Privatization Government by Contract: Outsourcing and American Democracy, 123 Harv. L. Rev. 890, 898 (2010).
9. Sarah Shik Lamdan, Sunshine for Sale: Environmental Contractors and the Freedom of Information Act, 15 Vt. J. Envtl. L. 1, 230 (2014).
10. Kathleen Clark, Ethics, Employees and Contractors: Financial Conflicts of Interest in and Out of Government, 62 Ala. L. Rev. 961, 961 (2011).
11. Martha Minow, Public and Private Partnerships: Accounting for the New Religion, 116 Harv. L. Rev. 1229, 1246 (2003).