For Owen M. Fiss: Reflections on the Triumph and the Death of Adjudication
Posted: 20 Sep 2005
This essay provides a rapid retrospective of some hundred years of history of civil processes in the United States and also refers to the world more generally, as a predicate to exploring today's challenges, different from those on of only decades ago. The question, then, was the permissibility of manipulating process to obtain outcomes, but the assumption, then, was that a court-based procedural regimes was itself durable.
Here, I argue a different tension - between the existence of judging as we understand it and systems of dispute resolution that lack most of adjudication's values and attributes. As Owen Fiss has many times insisted, adjudication is predicated on public and disciplined factfinding, licensing judges to impose regulatory obligations. This focus on the individual judge and this belief in adjudication embrace the state as a central regulator of conduct. The presumption is that transparent decisionmaking by state-empowered judges can be controlled through judges obliged to invoke facts adduced through a record, to give explanation, and to make available appellate review. But that view now has a serious competitor, committed to the utility of contract and looking to the participants to validate outcomes through consensual agreements, sometimes styled alternative dispute resolution (ADR) and sometimes dispute resolution (DR). Civil processes are one site of the struggle between public and private governance and between state-based redistribution efforts and market-focused mechanisms - between constitutionalism on the one hand, working through a regulatory state that relies in part on adjudication, and, contract, on the other, seen as maximizing utility by reflecting preferences and tastes.
My purposes in this essay are threefold. First, I explain why the familiar forms and function of adjudication, engaged by Owen Fiss's jurisprudence, are not necessarily durable. Second, I hope to inscribe new images of federal judges, no longer heroic solo actors but part of a corporate body that socializes new generations of judges to be suspicious of adjudication and to prefer negotiation. As I detail, the management of today's federal judiciary uses its collective voice to lobby Congress not to provide new federal rights and remedies if enforced in federal court. Third, I demonstrate how, by cutting off classes of litigants from high-profile adjudication by life-tenured federal judges and by sending these litigants to less public processes, policy choices of both judges and lawyers have reduced broad constituent support for adjudication.
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