The Family, the Market, and ADR
37 Pages Posted: 22 Jul 2011 Last revised: 12 Nov 2018
Date Written: July 19, 2011
This article begins with the observation that in ADR practice and scholarship, the family recurs as a model for thinking about other kinds of relationships, even in spheres that are commonly thought to be purely commercial or transactional in nature. This conflation of family/market paradigms is intriguing because, as Janet Halley has shown, for much of the 19th and 20th centuries, American legal thought has virtually required “the division of intellectual labor” between the law of the family, on the one hand, and the law of the market, on the other hand. The article thus explores the unexpected connections between models of the family and the market in contemporary ADR and compares them to earlier twentieth-century dispute processing reforms. It argues that contemporary ADR has embraced a new privatized idea of “the social.” Unlike during earlier periods of reform when “the social” signified preexisting, collective policy concerns that demanded state intervention, “the social” in contemporary ADR literature instead signifies affective, mutual, ethical relationships that individuals can and should build themselves — in the market, as much as in the home. Using ADR as a case in point, the article critically considers the politics and potential distributional effects of contemporary governance regimes that aspire to integrate efficiency and relationality, economics and intimacy, the market and the family.
Keywords: alternative dispute resolution, family courts, family mediation, commercial arbitration, Progressive era, neoliberalism
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