The Contingency of Courts: Changing the Experiences and Logics of Publics’ Role in Court-Based ADR
34 Pages Posted: 21 Aug 2015 Last revised: 9 Feb 2016
Date Written: August 1, 2015
Debate exists about how much alternative dispute resolution (ADR) is used in courts and about the metrics by which to evaluate its impact. Yet on two measures — the volume of rulemaking and the privatization of court-based interactions — the results are unambiguous: courts have promulgated hundreds of rules governing ADR, and those rules rarely protect rights of the public to know much about either the processes or the results. Rather, court-based procedural rules are increasingly becoming contract-promoting rules, encouraging parties to conclude disputes without adjudication.
In this essay, in honor of Professor Stephen Subrin, I explore the centrality of “open courts” to judicial legitimacy. Courts provide opportunities for democratic engagements with the production and application of law. The public’s right of access to observe proceedings in courts sustains judicial independence, legitimates public investments in the judiciary, and offers routes to oversight when courts fail to live up to obligations to treat disputants fairly. These constitutional values ought to inform the shape of procedural innovations in courts. Court-based arbitration and court-based settlement programs, like court-based trials, should be subject to regulation insistent on a role for the public.
Keywords: open courts, First Amendment, access to courts, alternative dispute resolution, settlement, arbitration, privatization, democratic engagement
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