The privatisation of process and the contingency of courts

Speaker

Professor Judith Resnik (Yale Law School)

Commentators

Dr John Sorabji (Judicial Institute, UCL; Principal Legal Adviser to the Lord Chief Justice and the Master of the Rolls)
Dr Naomi Creutzfeldt (University of Westminster) and
Dr Jeff King (University College London)

About the talk

“Open courts” and “public trials” are common phrases.  Those propositions (echoing the Magna Carta) are longstanding. But only through the equality movements of the twentieth century did all persons, regardless of race, gender, and ethnicity, gains rights to participate. Courts thus became democratic venues, in the sense of aspiring to provide access for disciplined and dignified exchanges across bitter divides about both rights and remedies.

The volume of claimants is both a sign of a success of courts as a government-subsidized social service and an enormous challenge. Pressures for new procedural rules come not only from managerial concerns but also from a host of critics, some arguing that alternative forms of dispute resolution (ADR) are more generative and others seeking to reduce the use of public courts altogether.

The result in the United States is the increasing privatization of process. The mechanisms include new interpretations of a 1925 statute, the Federal Arbitration Act (FAA) and the reorientation of court-based procedures to assimilate judges’ activities to those of other dispute resolution providers.

Debate exists about how whether outsourcing provides an “effective” vindication of rights and about how much ADR is used in courts. 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.

The diffusion of disputes to a range of private, unknowable alternative adjudicators undermines the constitutional protections accorded to the public—endowed with the right to observe state-empowered decision makers imposing binding outcomes on disputants. Closed processes preclude the public from assessing the qualities of what gains the force of law and debating what law ought to require. The questions are how constitutional values of public access and judicial independence can infuse the new forms of process currently being crafted and whether the egalitarian, redistributive aspirations of courts in democratic polities can and will be sustained.

Read a copy of the Diffusing Disputes article

About the speaker

Judith Resnik is the Arthur Liman Professor of Law at Yale Law School, where she teaches about federalism, procedure, courts, prisons, equality, and citizenship.

Professor Resnik now chairs Yale Law School’s Global Constitutional Law Seminar, a part of the Gruber Program on Global Justice and Women’s Rights. She is the editor of the volumes from 2012 forward, including The Reach of Rights (2015) and Sources of Law and of Rights (2014).

Professor Resnik is the founding director of Yale’s Arthur Liman Program and Fund, supporting fellowships for law graduates and for undergraduates at certain colleges, and sponsoring colloquia and seminars on the civil and criminal justice systems.

Professor Resnik has chaired the Sections on Procedure, on Federal Courts, and on Women in Legal Education of the American Association of Law Schools. She is a Managerial Trustee of the International Association of Women Judges. Professor Resnik served as a founder and for more than a decade as a co-chair of Yale University’s Women’s Faculty Forum, begun in 2001.

Her books have also received appreciation for their contributions. In 2011, Representing Justice was selected by The Guardian as one of the year’s ten best legal reads; in 2012, by the American Publishers Association as the recipient of two PROSE awards for excellence in social sciences and in law/legal studies, and by the American Society of Legal Writers for the 2012 SCRIBES award. In 2014, Representing Justice won the Order of the Coif award, presented every two years in recognition of a book’s outstanding contributions to legal scholarship.