Civil Justice Quarterly, Vol. 23, p. 273, 2004
Posted: 14 Sep 2004
What will adjudication look like, fifty years hence? Who will have access to this formal, state-provided process? More generally, what forms of dispute resolution will governments sponsor and promote? And what information about dispute resolution processes and outcomes will readily be available to the public? This essay offers a brief retrospective of some hundred years of the history of civil processes in the United States to illuminate why these are important and open questions today.
As I detail below, two conflicting trends have emerged over the last century. On the one hand, women and men of many colors and ages are now recognized as rightholders, and more relationships between individuals and the government are regulated by law. This rising demand for adjudication has resulted in the proliferation of sites of adjudication, with judicial services spreading from courthouses to agencies, from public to private sectors, and from national to international tribunals. Increased access to and reliance on adjudicatory forms have resulted. On the other hand, critics of formal adjudication have also succeeded in reorienting court-based procedure toward settlement in lieu of adjudication and in convincing judges to permit devolution of adjudicatory activities to agencies and to private processes rather than courts. Judges, joined by lawyers, academics, and legislators, have played prominent roles in generating new doctrines and norms to support several kinds of alternatives, many of which lack adjudication's transparency. The result is diminished reliance on and support for public processes.
In this article, I map how, during some of the decades of the twentieth century, civil processes in the United States relied on a conceptual framework anchored in the constitutional and common law of due process. More recently, the caselaw looks to doctrines of contract and agency law. While some posit the emergence of a new amalgam of cooperative governance through collaborations between public and private sectors in a post-regulatory environment, the struggle between constitutionalism and contract continues to identify central issues of civil processes today. Bargaining in the shadow of the law is a phrase often invoked, but bargaining is increasingly a requirement of the law of conflict resolution, both civil and criminal.
Cutting across the narratives of adjudication's proliferation and its privatization are several challenges. One is access. Large segments of the population lack the capability - in terms of income, knowledge, and/or assistance from adept professionals - to use legally-based processes, be they formal adjudication or its alternatives. A second and interrelated issue is the problem of distributing the juridical services now available. The many sites of adjudicatory activity do not all offer the same processes nor do they have comparable resources. The issue is how to allocate different kinds of claims to the various dispute resolution authorities. A third challenge stems from the knowledge, enabled by technology, about both the breadth of harms suffered by hundreds of similarly-situated individuals and the degree of inter-litigant disparity in outcomes produced under current conditions. From thousands of consumers and tort victims to criminal defendants, comparisons can be made about the quantum of injury and the kind of remedy. The fourth complexity arises from changes in the configuration of power. National governance has grown in importance, as has transnational political ordering, matched by concentrations of power in international corporate actors.
Neither adjudication nor its alternatives deals well with the problems of access, allocation, and inter-litigant equity. As I will detail, the current legal landscape tolerates an erratic distribution of rights of access to formal process, permits both adjudication and bargaining to occur under conditions of dramatic inequalities of power, and condones administrative solutions based on questionable empirical bases producing instances of demonstrably unfair outcomes in sentences and in compensation schemes.
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