Abstract

http://ssrn.com/abstract=1286093
 


 



From 'Rites' to 'Rights' of Audience: The Utilities and Contingencies of the Public's Role in Court-Based Processes


Judith Resnik


Yale University - Law School

Dennis E. Curtis


Yale University - Law School


REPRESENTATIONS OF JUSTICE, Antoine Masson, Kevin O'Connor, eds., PIE, 2007

Abstract:     
This chapter, in the book Representations of Justice, examines the history of public displays of the power of rulers, who relied on the open rituals of judgment and punishment to make and to maintain law and order. We map how the ritualistic performance for the public became a right of the public to participate in and to observe adjudication. Using the United States as an example, we show why courts can serve as rich sources of information about legal, political, and social conflict. Yet, despite new technologies facilitating access, information about conflicts and their resolution is being limited through laws, doctrines, and practices that devolve court authority to low-visibility tribunals inside administrative agencies, outsource decision making to private providers, and reformulate court-based processes to promote private management and settlement in lieu of public adjudication.

These new processes reveal the contingency of the public's role and require analyses of the premises for public rights of audience. The argument we make for public processes relies not only on courts' capacity to provide insights into the uses of both public and private power but also on how court-based public practices generate and reflect democratic norms. Open courts welcome popular input into the production of norms. Further, they provide an opportunity to observe the ordinary, bureaucratic imposition of authority.

Whether expressing and creating commitments to human dignity, fair treatment of equals, and government accountability or demonstrating aggressive retribution that can foster sectarian strife, the display of conflicts (with its attendant cross-claims, fights over facts, decisions, and sanctions) enables contestation, change, or reaffirmation of the practices and rules shown. Open courts enact commitments to living in a social order in which disputes are neither the private and exclusive domain of those in disagreement nor owned by governmental authorities holding the power to impose law.

working papers series





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Date posted: March 21, 2009 ; Last revised: February 7, 2011

Suggested Citation

Resnik, Judith and Curtis, Dennis E., From 'Rites' to 'Rights' of Audience: The Utilities and Contingencies of the Public's Role in Court-Based Processes. REPRESENTATIONS OF JUSTICE, Antoine Masson, Kevin O'Connor, eds., PIE, 2007. Available at SSRN: http://ssrn.com/abstract=1286093 or http://dx.doi.org/10.2139/ssrn.1286093

Contact Information

Judith Resnik (Contact Author)
Yale University - Law School ( email )
P.O. Box 208215
New Haven, CT 06520-8215
United States
203-432-1447 (Phone)
203-432-1719 (Fax)
Dennis E. Curtis
Yale University - Law School ( email )
P.O. Box 208215
New Haven, CT 06520-8215
United States
203-432-2427 (Phone)
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