The Contingency of Courts: Changing the Experiences and Logics of Publics’ Role in Court-Based ADR

Judith Resnik, Arthur Liman Professor of Law at Yale Law School, has written “The Contingency of Courts: Changing the Experiences and Logics of Publics’ Role in Court-Based ADR,” Nevada Law Journal, Vol. 15, p. 951, 2015. In her scholarly article, Professor Resnik examines the effect that arbitration and other alternative dispute resolution mechanisms have had on the nation’s court system.

Here is the abstract:

Debate exists about how much alternative dispute resolution (ADR) is used in courts and about the metrics by which to evaluate its impact. Yet on two measures — the volume of rulemaking and the privatization of court-based interactions — the results are unambiguous: courts have promulgated hundreds of rules governing ADR, and those rules rarely protect rights of the public to know much about either the processes or the results. Rather, court-based procedural rules are increasingly becoming contract-promoting rules, encouraging parties to conclude disputes without adjudication.

In this essay, in honor of Professor Stephen Subrin, I explore the centrality of “open courts” to judicial legitimacy. Courts provide opportunities for democratic engagements with the production and application of law. The public’s right of access to observe proceedings in courts sustains judicial independence, legitimates public investments in the judiciary, and offers routes to oversight when courts fail to live up to obligations to treat disputants fairly. These constitutional values ought to inform the shape of procedural innovations in courts. Court-based arbitration and court-based settlement programs, like court-based trials, should be subject to regulation insistent on a role for the public.

You may download this and other research papers published by Professor Resnik from the Social Science Research Network.

Photo credit: surreynews / Foter / CC BY-ND