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:
The Posse Comitatus Act: Liberation from the Lawyers
"Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both." --Posse Comitatus Act (1) Much has been written about the Posse Comitatus Act. As a few others have noted, much of this commentary is "just plain nonsense." (2) The majority opinion, however, including that of the Department of Defense, maintains that this 19th-century law strictly limits almost all DOD participation in any activity related to "law enforcement" or "homeland security." (3) This fundamental mischaracterization, while understandable, is potentially dangerous to national security and has done nothing to protect civil liberties. So how did a racist law from the bitter Reconstruction period morph, in many minds, into shorthand for the respected principle that Americans do not want a military national police force? In a nutshell: deliberate mischaracterization by the original supporters who hid behind patriotic language to strip the freed slaves of their nascent civil and voting rights; excessive focus on the false historical arguments as opposed to the law's actual text and ugly history; and some bad policy that misused a few key court decisions, and part of a statute, in a way that limited DOD efforts in the "war on drugs" at a time when Congress was pushing expanded participation. This article introduces the actual history and meaning of the Posse Comitatus Act, distinguishing clearly between the law and a misleading DOD regulation that requires an army of lawyers to navigate. Despite what you've heard, the Posse Comitatus Act is not a significant impediment to DOD participation in law enforcement or homeland security. The Act's Uninspiring Pedigree General Acceptance of Army Participation in Law Enforcement (1787-1861) While the nation's founders were deeply concerned with the abuses of the British army during the colonial period and military interference in civil affairs, the majority was even more concerned about a weak national government incapable of securing life, liberty, and property. Some vocal patriots sought to avoid a standing army and any federal control over the state militias; however, in the end, theirs was the minority view. The new Constitution did not contain the explicit limits and outright bans desired by some, even though the pro-Constitution Federalists explicitly argued that the standing army could assist in law enforcement efforts. The framers even debated the federal government's power to call out the posse comitatus (literally meaning the power or authority of the county) and did not prohibit this established feature of the common law. Clearly, the Posse Comitatus Act did not originate from the prevailing opinion during the revolutionary period. Legislative and executive actions in the early days of the American republic confirm that the use of federal troops or federalized militia to preserve domestic order, either as part of a posse comitatus or otherwise, was an accepted feature of American life under the new Constitution. In 1794, President Washington led federal troops into western Pennsylvania because unruly farmers refused to pay a whiskey excise tax. President Jefferson issued a broad proclamation that relied upon the Chief Executive's authority to call on the entire populace, military and civilian, to serve as a grand posse comitatus to counter Aaron Burr's planned expedition against Spanish territory. In 1832, President Jackson initially sent military forces toward South Carolina under a Jefferson-like posse comitatus theory to prevent secession. In an 1851 report to the Senate, President Fillmore stated that he had the inherent power to use regular troops to enforce the laws and that all citizens could be called into a posse by the marshal. …