Retired to Greener Pastures: The Public Costs of Private Judging
19 Pages Posted: 7 Aug 2013
Date Written: July 28, 2013
The trend to privatize justice and the loss of judges from the public court system to the higher pay opportunities and flexibility in the private ADR industry raises important concerns about the quality of justice, due process, and wellbeing of the public justice system. This article explores the impact of this development — the benefits and costs — on the access to quality and meaningful justice. Part II examines the process for judicial selection and appointment, the role of the judge in a public justice system, and the compensation packages typically offered to public judges, while also reporting attrition and retirement from the bench. Part III considers the reasons motivating public judges to leave the bench for work in the private ADR sector and attendant effects on the public courts. While recognizing the benefits of private dispute resolution, Part IV counsels for limitations on the marketing of one’s status and service as a public judge while pursuing work as a paid private neutral, and proposes adoption of a canon of ethics for former judges serving as private arbitrators and mediators. The article concludes with a call for increased public investment toward improvements in the public court system in order to renew the calling to judicial service and to preserve a meaningful foundation of access to public justice.
Keywords: public justice system, public judges, public courts, privatized justice, access to justice, private ADR, private dispute resolution, alternative dispute resolution (ADR), arbitration, mediation, Federal Arbitration Act (FAA)
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