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.
Judicial politics in Britain: Patrolling the boundaries
This study considers judicial policy‐making in Great Britain by noting the peculiarly British institutional restraints on judicial action of parliamentary sovereignty, the resulting subordination of all courts to the legislative branch and the absence of a codified charter of rights or constitution. Though there is no judicial power to annul legislative or executive actions, British courts and judges still play a small, but significant, role in policy‐making through the common law and, in particular, through judicial review of adminstrative actions. A written bill of rights would likely draw courts further into the the political arena and politicise the appointment of judges.