Reinventing Courts as Democratic Institutions

Abstract

Eighteenth-century constitutional commitments guaranteeing rights-to-remedies were shaped when members of the propertied classes were the prototypical litigants and governments' criminal justice systems were nascent. Twentieth-century egalitarian norms expanded the imagination of what justice could produce, and courts turned into sites of democracy. The particular and peculiar practices of adjudication produce, redistribute, and curb power among disputants who disagree in public about the import of legal rights. But new procedures—alternative dispute resolution (ADR)—encourage, and sometimes require, disputants to mediate or to arbitrate disputes privately as a predicate to or in lieu of using the public forum of courts. Some initiatives delegate adjudication to administrative tribunals, and others outsource binding decision-making to private providers. The resulting fragmentation and privatization of adjudication have profound implications for the newly minted democratic character of courts. The durability of courts as active and disciplined sites of public exchange ought not to be taken for granted. Like other venerable institutions of the eighteenth century—such as the postal service and the press, which served in parallel fashion to disseminate information and support democratic competency—courts are vulnerable.