The Role of Courts in American Society
What types of cases not/ fit for courts?
2 sets criteria:
Functional Criteria:
Factors which make court peculiarly un/suited to hear dispute; whether institution of court is competent
1- Objectivity
a. Nec to cases of life-and-death, constitutional issues, liberty at stake
2- Necessity for Authoritative Standards
a. If ascertainable or authoritative standard can be applied, dispute belongs in court; if no standard, prob not resolvable by court
Prudential Criteria:
Factors making court more/less suited to hear + resolve dispute, assuming that court is competent to adjudicate controversy.
1- cost
a. is cost @ issue < legal costs?
2- Particularized considerations
a. If no particularized consideration, may not need authority of court
3- Preference of parties
a. Would sounder resolution stem from parties than from 3rd party judgment
4- Vitality of another institution
a. Court should supplant traditional decision-maker only in compelling cases- bc would otherwise neuter trad institutions power
Rehnquist: ** warning against claims which “can only disrupt ongoing relations—crystallization of differences in adversary process may threaten the future of the institutional relationship” **
5- immediate resolution of specialized problem
a. delay posed by courts would hinder decision-making
Situations in which courts play support role:
1- child custody cases
a. court should be backup- bc threat of judicial intervention might expedite resolution
b. due to ongoing nature of rltn (parents will remain in contact, even if only via child), non-court resolution avoids adversarial rltns
Against Settlement (O Fiss) pp38-45
1984: Prof Bok (of Harvard) called for growth of ADR, to veer away from ‘legal combat’
courts= institutionalization of objective/independent ‘stranger’ to resolve disputes
adjudication= process by which ‘stranger’ exercises power
ADR goal: parties reach agreement before intervention of ‘stranger’ (court) based upon consent of both parties
Problems w/ADR:
Settlement= civil equivalent of plea bargaining
Implicitly assumes equality between disputing parties
Assumes settlement is prediction of parties’ expectations of outcome of trial
Characteristics of entity change the impact of settlement/resolution on that entity
— Poorer party- may be forced to settle earlier
– less able to predict outcome of litigation
– less able to wait on outcome of litigation + thus forced to settle
resources influence quality of presentation/ argument
—-adjudication aspires to autonomy from distributional inequalities
settlement prohibits party from seeking enforcement/ modification in court, bc judge never knew original situation
adjudication uses public resources & employs public official chosen by process sin which public participates
ADR should judge quality of case- some issues are more important and should be settled by adjudication- be far-reaching/ historical/ societally charged issue or consequences
Adjudication is evidence of using institutions to try an
Legal public authoritative:
-by neutral 3rd party
-judicial/legis decision
Extra legal action:
-coerced
decisionmakers=
violence/ nonviolent direct action
What factors go into determining process:
1- $
2- non-economic resources
a. 1+2 are available to both parties
3- reputational factors
4- characteristics of dispute- can desire doutocme be decided + enforced by a court?
5- Strength of case- will you prevail? (non-court is less zero-sum)
6- Time pressure/ how quickly is resolution needed?
7- Goal in complaint? Return to statuts quo vs social stmt
8- Cultural expectations
How do JDs choose?
-contorl over process—frustration with rules may exacerbate conflict
-knowledge / skill at specific process
courts can create precedentà bc happen in public
other processes happen in private—to save face/ preserve privacy/ preserve biz practices + secrets + family knowledge
Reason for public forums?
n uphold law/ affirm the power of govt to make decisions
n create precedent- will dictate future axns w/out need to dispute
