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.
Managerial Judging and the Evolution of Procedure
Pandas don't have thumbs. At least, they don't have real thumbs. Instead, they have funny little extensions of their wrist bones that they use to strip the shoots off bamboo branches. They look like thumbs, and they work like thumbs-at least they work well enough that not many pandas starve. But technically only primates have real thumbs, with bones and muscles opposed to the fingers. Evolutionary theorist Steven Jay Gould draws a number of lessons from the panda's "thumb."' The one relevant here is that evolution is not infinitely malleable. Evolutionary processes work by modifying existing structures until they become capable of performing new functions. Hence, the panda's "thumb"-an elongated wrist bone that can do some, but not all, of the things a real thumb can do. I hope to convince you that the procedural techniques grouped together under the rubric "managerial judging" have a lot in common with the panda's "thumb." This kind of analogy is not new.2 At the end of the first chapter of The Common Law, for example, Oliver Wendell Holmes, Jr. wrote:
2000 Review conference of the parties to the treaty on the non-proliferation of Nuclear Weapons, final document
4. The Conference notes that the non-nuclearweapon States Parties to the Treaty reaffirmed their commitment not to receive the transfer from any transferor whatsoever of nuclear weapons or other nuclear explosive devices or of control over such weapons or explosive devices directly, or indirectly, not to manufacture or otherwise acquire nuclear weapons or other nuclear explosive devices, and not to seek or receive any assistance in the manufacture of nuclear weapons or other nuclear explosive devices. 2000 REVIEW CONFERENCE OF THE PARTIES TO THE TREATY ON THE NON-PROLIFERATION OF NUCLEAR WEAPONS FINAL DOCUMENT