The Challenges of Participatory Justice for Public Adjudication
Another important theme to consider in civil justice is the convergence of a number of phenomena identified in civil procedure: the move toward alternative dispute resolution (ADR), the preference for settlement, the shifting of the role of the judge toward managerial judging, and the shifting of the role of lawyers toward conflict resolution advocacy. These phenomena all point to a discernible move away from justice by adjudication toward “participatory” justice, as well as a move away from public justice toward more private forms of justice. By private forms of justice, we mean both dispute resolution mechanisms that intervene only between parties without binding effect on third parties, as well as the rise of legal norms produced by private entities, which opposes the historically constructed idea that the State has a monopoly over legal norms and that legal norms are those which have been produced in a public forum. We offer an overview of some of the arguments put forward to justify and challenge these changes in dispute resolution processes, the role of judicial actors, and that of the State in the administration of justice. We also try to identify the values that may underlie these shifts.
Ethics in ADR: The Many
This essay, based on a talk given at AALS Annual Meeting of Professional Responsibility and Dispute Resolution Sections in 2001 reviews current developments in the ethics of the practice of Alternative (or "appropriate" ) Dispute Resolution. The essay reviews current issues of counseling about ADR, choice of law, conflicts of interest, confidentiality, choice and coercion in the use of mediation and other forms of ADR and in particular, lawyers' roles in this area of practice. The article refers to current developments in the ABA Ethics 2000 Commission's proposals for changes to the Model Rules of Professional Conduct and other new efforts at drafting ethics and standards in ADR, including the new CPR-Georgetown Commission on Ethics and Standards in ADR's report on Provider Principles.
Vanishing Trials: The Bankruptcy Experience
The federal bankruptcy system provides two critical points of comparison with data about the overall trends of federal lawsuits and trials. The first is the rising number of bankruptcy filings, which indicates that a growing number of collection actions and debtor-creditor disputes are funneled into the bankruptcy system for relatively quick, cheap resolution. The second point of comparison focuses on adversary proceedings, the lawsuit-like subset of disputes that sometimes are resolved within a bankruptcy. The trend lines here suggest that the number of adversary proceedings filed is climbing, while the number of such disputes that are actually resolved by trial is declining. Like the data about the federal court system generally, these data suggest that the trial is quietly vanishing from the bankruptcy system. Data about the number of judges and about business and nonbusiness bankruptcy cases make it possible to explore two competing hypotheses—a Judicial Workload Hypothesis and a Cost Hypothesis—to explain the overall findings. The data are not conclusive, but they are consistent with the view that judicial workloads explain less of the decline in the number of trials than an increase in litigants’ costs of resolving disputes in bankruptcy. The data are also consistent with a vision of bankruptcy as an evolving process that is increasingly standardized (and cheaper) for nonbusiness debtors, while it is highly individualized (and more costly) for business cases. If that vision is right, it has implications both for understanding the changing role of the trial and for considering various statutory proposals to differentiate further the treatment of large business, small business, and nonbusiness cases.