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.
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. …