Harvard’s Laurence Tribe is currently serving as a senior counselor in the Justice Department on access to justice. Last week he addressed the nation’s state chief justices at their annual conference, where he gave an impassioned plea to reform “a system in which the deck is stacked in favor of those who already have the most: in favor of the wealthy and against those already disadvantaged or victimized by the more powerful.” Tribe asked the judges to make pro bono and pro se representation easier and to enforce the rights of juveniles and indigents to counsel. In addition, he bemoaned the delays and high costs that have become endemic in American courts, and tied that problem to the growth of private dispute resolution, with a decidedly sceptical eye:
For the privileged litigants who can afford it, the natural response to a denial of justice in the public courtrooms of our nation is to take their business to private judges and mediators, operating outside the watchful gaze of the public and beyond the effective reach of the rule of law. The harm that results from that private response is experienced as well in the public sphere, where adjudication conducted out of the public’s sight mystifies instead of educating, depriving democracy of one of its essential wellsprings, that of seeing justice done. . . .
The human rights activist Gary Haugen, founder and director of International Justice Mission, has documented the way in which wealthy and powerful elites in third world countries with dysfunctional public justice systems often circumvent those systems with workarounds that submit their controversies to private dispute resolution, leaving the poor, who of course can afford no such recourse, to depend on the clogged and at times corrupt public courts. That leads to a vicious cycle of cynicism and disaffection in which the system’s democratic legitimacy, the very foundation of its capacity to articulate and enforce the rule of law, disintegrates. And that in turn leads increasing numbers to flout the law, to resort to self-help, or to give up altogether, eroding the traditional claim of the judicial branch to a share of public resources sufficient to perform its mission with competence and integrity. In the meantime, the powerful constituencies that once treated the public courts as their arbiters of last resort develop a diminishing stake in keeping the public judicial system afloat.
I’m not convinced that it makes sense to treat mediation and arbitration alike in that critique, notwithstanding the disquiet that many have felt and continue to feel (at least since Fiss’s Against Settlement) with negotiated dispute resolution. But the critique is powerful as directed against arbitration, and it seems couched to appeal to the judges’ sense of self-worth. Tribe is telling them that they need to compete with private adjudication or see their own status devalued. Of course, they can compete either by offering better public dispute resolution or by putting the legal clamps on private dispute resolution. It isn’t hard to see which of those would be easier to achieve.