The Family, the Market, and ADR

Amy J. Cohen

Ohio State University (OSU) - Michael E. Moritz College of Law

July 19, 2011

Journal of Dispute Resolution, Forthcoming
Ohio State Public Law Working Paper No. 152

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.

Number of Pages in PDF File: 37

Keywords: alternative dispute resolution, family courts, family mediation, commercial arbitration, Progressive era, neoliberalism

Open PDF in Browser Download This Paper

Date posted: July 22, 2011 ; Last revised: November 29, 2011

Suggested Citation

Cohen, Amy J., The Family, the Market, and ADR (July 19, 2011). Journal of Dispute Resolution, Forthcoming; Ohio State Public Law Working Paper No. 152. Available at SSRN: https://ssrn.com/abstract=1889271

Contact Information

Amy J. Cohen (Contact Author)
Ohio State University (OSU) - Michael E. Moritz College of Law ( email )
55 West 12th Avenue
Columbus, OH 43210
United States

Feedback to SSRN

Paper statistics
Abstract Views: 724
Downloads: 129
Download Rank: 175,394