Whither and Whether Adjudication?

Abstract

This essay sketches (in part through a few charts and photographs) how adjudication has changed over the past one hundred years. Adjudication, an ancient practice, only became a requisite aspect of successful, market-based economies during the course of the twentieth century, as democratic principles of equality insisted on the dignity of all persons. An array of individuals became eligible to bring claims into courts, and both public and private providers became accountable through adjudication to explain a variety of their decisions.

In the United States, national groups of lawyers who were supported by leading judges and academics pressed Congress to create new statutory rights, to endow federal courts with authority over such claims, and to augment judicial resources. The growth in statutory mandates, the power of federal law to preempt state lawmaking, and the protections accorded life-tenured judges by Article III of the U.S. Constitution made the federal courts an attractive venue for litigants aiming to establish or to preserve principles of law. That increased reliance on the federal system resulted in its expansion as well as in efforts to diversify adjudicatory opportunities by using agencies and by reformulating the procedural rules of courts. Some litigants were routed to the life-tenured judiciary, increasingly interested in settling cases, and others were sent to administrative agencies, once celebrated for their simpler process but more recently a focus of concern about their deficient process.

Some celebrated the widening aegis of adjudication, while others objected to the broadening role of courts, as they struggled to respond to the many demands placed on them. The unwillingness or inability to generate popular constituencies sufficient to support the financing of access to high-quality adjudication for eligible claimants, coupled with opposition from those questioning the desirability of widespread opportunities to bring lawsuits, resulted in the revamping of doctrines and rules, both procedural and substantive. During the past thirty years, adjudication's reach has been constrained in part through requiring alternatives and in part by devolving much of the work of courts to administrative agencies and private providers. Thus, accounts of adjudication during the twentieth century must simultaneously record adjudication's expansion as well as its constriction through delegation and privatization.

What is lost when litigation opportunities narrow? What adjudication offers to democratic governance are occasions to observe the exercise of state authority and to participate, episodically, in norm generation occurring through a haphazard process in which vivid sets of alleged harms make their way into public purview. Adjudication is not necessarily an ideal mechanism for social policymaking, but it does serve to disseminate information about the imposition of state power and to legitimate that power. Adjudication's public dimensions also enable a diverse audience to see the effects of the application of law in many specific situations. As various sectors of the public gain insight into law's obligations and remedies, reaffirmation of those precepts occurs, or pressures emerge for judges and legislators to expand or to constrict extant rules.

Courthouses are familiar features of local landscapes. Yet, recent shifts in practices put adjudication's public dimensions are at risk. As court-based processes focus on facilitating settlements, and as courts outsource their evidentiary work to administrative agencies and private dispute resolution providers, the power and effects of decision making become less readily accessible. Given the proliferation of the sites of adjudication and the pressures to seek alternative forms of resolution, I am not confident that adjudication will be as available one hundred years hence as it is today, nor that its substitutes will permit easy public observation and public knowledge of the deployment of power, both public and private.