The Privatization of Civil Justice

By Murray, Peter L. | Judicature, May/June 2008 | Go to article overview
Save to active project

The Privatization of Civil Justice


Murray, Peter L., Judicature


The growing privatization of civil justice brings the risk that public justice as we know it is being eroded.

The last half-century has seen a virtual transformation of the processes of U.S. civil justice. Basically, the civil justice decision-making function has been largely supplanted by a system of dispute resolution by private, profit-making actors and agencies, be they arbitrators or mediators. This development has reached such an extent as to raise serious issues about civil justice and even the rule of law itself.

Traditionally, civil justice has been considered a function of democratic government. In civil litigation private parties invoke the power of the state, dispensed by public decision makers, to compel the participation of opposing parties to actually decide the dispute according to law, and then to enforce the resulting decision by public force. Part and parcel of civil litigation is the enforcement and implementation of public norms and processes.

Although civil justice is found in many forms in the modern world, all systems have four key characteristics: 1 ) The processes of civil justice are transparent, in that the parties and the public are given access to the proceedings by which public norms are applied to issues raised by private powers; 2) The public decision makers are chosen, paid, and regulated so as to insulate them from influence from parties or other private elements; 3) The decision makers are expected to base their decisions on legal norms that are publicly known before the decision is made; and 4) The decisions are subject to some form of oversight and control by appeals to superior courts, and this oversight can be invoked by the parties. It is safe to say all of these features are comprehended by the concept of "due process of law" as it has developed in the United States over the last 200 years.

What's new?

The processes of civil justice have never been regarded as an option of "first resort" in terms of dispute resolution. Parties have always been encouraged to resolve their differences informally before resorting to litigation. They have also been permitted to create their own private dispute resolution process and avail themselves of the coercive power of the state in aid of the process. Various forms of arbitration have been around for a long time, generally in specialized areas such as construction law, maritime charter agreements, and labor law. Even after litigation has commenced, parties have always been free to reach out of court settlements that are often enforceable as public judgments. So, since private dispute resolution in the form of pre-dispute negotiation, arbitration, and party settlement during litigation have long been traditional parts of the public justice model, what is new?

What is new, truly new, in the last 30 years of the 20th Century is the extraordinary growth of private dispute resolution modalities and the development of an entrepreneurial industry of private dispute resolution services providers. In many areas of the law this development is leading to the practical disappearance of public justice decisions.1 Actual application of public norms to private disputes is becoming a rarity. Of equal concern is that these new providers of decision-reaching services are private economic actors, not public agencies. It is already apparent that their activities are subject to economic influences inconsistent with the standards of impartiality and independence associated with public justice and the rule of law. The privatization of public justice brings the risk that public justice as we know it is being eroded.

As recently as the 1960s public justice enjoyed a high degree of confidence and acceptance in the United States. Persons injured or imposed on by private actors could turn to the public courts and get justice, in the form of a court judgment adjudicating the issues raised according to the facts found and the provisions of law.

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
Loading One moment ...
Project items
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

Cited article

The Privatization of Civil Justice
Settings

Settings

Typeface
Text size Smaller Larger
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

While we understand printed pages are helpful to our users, this limitation is necessary to help protect our publishers' copyrighted material and prevent its unlawful distribution. We are sorry for any inconvenience.
Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.

Are you sure you want to delete this highlight?