The Functions of Publicity and of Privatization in Courts and their Replacements (from Jeremy Bentham to #MeToo and Google Spain)
Open Justice: The Role of Courts in a Democratic Society, Burkhard Hess and Ana Koprivica (editors), Nomos, 2019
25 Pages Posted: 26 Oct 2018
Date Written: October 22, 2018
Jeremy Bentham theorized the disciplinary, educative, and evaluative utilities of public adjudication, in which third parties can observe and critique the proceedings. Constitutions around the world have applied those ideas through mandates for ‘open courts’ and ‘fair hearings,’ albeit translated in practice in diverse ways.
The contemporary #MeToo movement has deployed Bentham’s ‘publicity principle’ by using twenty-first century technologies to challenge institutions for failing to sanction sexual predators. The web has thus provided a function akin to what courts do—disseminating information and imposing discipline. These new technologies, enabling ‘online dispute resolution’ (ODR), augment efforts styled alternative dispute resolution (ADR) to transform courts or to route legal disputes to conclusions without courts. Neither ODR nor ADR, based in or out of courts, routinely builds in mechanisms for third-party access to processes or outcomes.
Ready access to information is not, however, an unmitigated good, as reflected in a new right ‘to be forgotten’ that eliminates materials from the web through decisions by a private adjudicator—Google. This chapter explores the impetus for reforming courts, the repeat players promoting new procedures, the challenges of regulating both process and information, and the fragility of commitments to state-provided public adjudication in which third parties are recognized as authorized to observe and critique.
Keywords: Publicity, proof, courts, ADR, ODR, Bentham, #MeToo, Google
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