Revisiting a gainst settlement: Some reflections on dispute resolution and public values

Fordham Law Review

Volumn 78, Issue 3, 2009, Pages 1143-1170

  Cohen, Amy J ^a  

^a OHIO STATE UNIVERSITY   (United States)

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EID: 75649113420     PISSN: 0015704X     EISSN: None     Source Type: Journal    
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References (251)

1. See Owen M. Fiss, Against Settlement, 93 YALE L. J. 1073, 1085-87 (1984) [hereinafter Fiss, Against Settlement].
2. See infra Part I.
3. Owen M. Fiss, The Social and Political Foundations of Adjudication, 6 LAW & HUM. BEHAV. 121, 128 (1982) [hereinafter Fiss, The Social and Political Foundations of Adjudication];
4. see also Owen M. Fiss, Foreword: The Forms of Justice, 93 HARV. L. REV. 1 (1979) [hereinafter Fiss, The Forms of Justice]. Fiss, of course, was not alone in claiming that alternative dispute resolution (ADR) would disregard the public interest or disaggregate conflicts properly understood as collective social problems.
5. See, e.g., Harry T. Edwards, Commentary, Alternative Dispute Resolution: Panacea or Anathema?, 99 HARV. L. REV. 668, 676-78 (1986);
6. Laura Nader, The ADR Explosion-The Implications of Rhetoric in Legal Reform, 8 WINDSOR Y. B. ACCESS TO JUST. 269, 271 (1988).
7. See, e.g., SITEPHEN B. GOLDBERG ET AL., DISPUTE RESOLUTION: NEGOTIATION, MEDIATIONc, AND OTHER PROCESSES 148-49 (2007);
8. CARRIE J. MENKEL-MEADOW ET AL., DISPUTE RESOLUTION: BEYOND THE ADVERSARIAL MODEL 52 (2005) (quotation only);
9. ALAN SCOTT RAU ET AL., PROCESSES OF DISPUTE RESOLUTION: THE ROLE OF LAWYERS 38-45 (4th ed. 2006);
10. LEONARD L. RISKIN ET AL., DISPUTE RESOLUTION AND LAWYERS 21-27 (3d ed. 2005). Together these casebooks are authored by seventeen leading dispute resolution teachers and scholars.
11. See Jethro K. Lieberman & James F. Henry, Lessons from the Alternative Dispute Resolution Movement, 53 U. CHI. L. REV. 424, 433 (1986) ("One short answer to Fiss is that most ADR proponents make no claim for shunting all, or even most, litigation into alternative forums.");
12. Carrie Menkel-Meadow, For and Against Settlement: Uses and Abuses of the Mandatory Settlement Conference, 33 UCLA L. REV. 485, 500 (1985) [hereinafter Menkel-Meadow, For and Against Settlement] ("When an authoritative ruling is necessary, I believe Fiss is right-the courts must adjudicate and provide clear guidance for all: Racial discrimination is wrong; oppressive prison conditions are intolerable in a decently humane society.");
13. see also LAWRENCE SUSSKIND & JEFFREY CRUIKSHANK, BREAKING THE IMPASSE: CONSENSUAL APPROACHES TO RESOLVING PUBLIC DISPUTES 17 (1987) ("When fundamental constitutional rights are at stake, we properly turn to our judicial system.");
14. LEIGH L. THOMPSON, THE MIND AND HEART OF THE NEGOTIATOR 100-01 (2d ed. 2001) (proposing that unlike conflicts of interests, conflicts of "fundamental values" are appropriately resolved through rights-based processes);
15. WILLIAM L. URY, JEANNE M. BRETT and STEPHEN B. GOLDBERG, GETTING DISPUTES RESOLVED: DESIGNING SYSTEMS TO CUT THE COSTS OF CONFLICT 17 (1988) ("Although reconciling interests is generally less costly than determining rights, only adjudication can authoritatively resolve questions of public importance.").
16. See Robert A. Baruch Bush, Mediation and Adjudication, Dispute Resolution and Ideology: An Imaginary Conversation, 3 J. CONTEMP. LEGAL ISSUES 1, 6-7, 13-15 (1989-1990) (arguing that Fiss and others miss "the public-value argument for mediation", grounded in moral development, relationality, and concern for others);
17. Andrew W. McThenia & Thomas L. Shaffer, For Reconciliation, 94 YALE L. J. 1660, 1665 (1985) (discussing ADR's potential to promote values such as healing, reconciliation, community cohesion, and an understanding of justice as "something people give to one another", rather than receive from government or law);
18. Carrie Menkel-Meadow, Whose Dispute Is It Anyway?: A Philosophical and Democratic Defense of Settlement (In Some Cases), 83 GEO. L. J. 2663, 2669-70 (1995) [hereinafter Menkel-Meadow, Whose Dispute] (discussing ADR's potential to promote values such as "consent, participation, empowerment, dignity, respect, [and] empathy").
19. See David Luban, Settlements and the Erosion of the Public Realm, 83 GEO. L. J. 2619, 2620 (1995) ("[T]he settlement process can realize some of the values Fiss and I both find in adjudication.... but only if they are crafted with this end in mind.");
20. Jeffrey R. Seul, Settling Significant Cases, 79 WASH. L. REV. 881, 947 (2004) (arguing that "deliberative forms of social and political engagement... may often contribute as much or more to the evolution of social norms than would a U. S. Supreme Court decision");
21. Susan Sturm, Law's Role in Addressing Complex Discrimination, in HANDBOOK OF EMPLOYMENT DISCRIMINATION RESEARCH: RIGHTS AND REALITIES 35, 54-55 (Laura Beth Nielsen & Robert L. Nelson eds., 2005) ("The worry [of Fiss and others] is that ADR... is necessarily private, non-norm generating.... However, it is important to separate critiques of current practice from normative theories.... With judicial involvement in assessing and publicizing adequacy criteria, [ADR] has the potential to be norm generating-" (citations omitted));
22. Susan Sturm & Howard Gadlin, Conflict Resolution and Systemic Change, 2007 J. DISP. RESOL. 1, 3 (disputing the assumption of Fiss and others "that informal conflict resolution is necessarily non-normative, and that it cannot yield more general public values");
23. Georgios I. Zekos, Maritime Arbitration and the Rule of Law, 39 J. MAR. L. & COM. 523, 543 (2008) (discussing "ADR's power to produce responsible public norms");
24. Brian Ray, Extending the Shadow of the Law: Using Hybrid Mechanisms To Develop Constitutional Norms in Socioeconomic Rights Cases 2-3 (Ctr. for Human Rights & Global Justice, Working Paper No. 21, 2008), available at http://papers.ssrn.com/sol3/papers.cfm?abstract-id=1380351 ("This Article challenges the general perception [developed by Fiss and others] that alternative dispute resolution processes cannot develop public-law norms.").
25. 2 THE POLITICS OF INFORMAL JUSTICE (Richard L. Abel ed., 1982).
26. Boaventura de Sousa Santos, Law and Revolution in Portugal: The Experiences of Popular Justice After the 25th of April 1974, in 2 THE POLITICS OF INFORMAL JUSTICE, supra note 8, at 251.
27. Barbara Isaacman & Allen Isaacman, A Socialist Legal System in the Making: Mozambique Before and After Independence, in 2 THE POLITICS OF INFORMAL JUSTICE, supra note 8, at 281.
28. Jack Spence, Institutionalizing Neighborhood Courts: Two Chilean Experiences, in 2 THE POLITICS OF INFORMAL JUSTICE, supra note 8, at 215.
29. Sally Engle Merry & Neal Milner, Introduction to THE POSSIBILITY OF POPULAR JUSTICE: A CASE STUDY OF COMMUNITY MEDIATION IN THE UNITED STATES 8 (Sally Engle Merry & Neal Milner eds., 1995) (summarizing various ethnographic studies).
30. For example, in one mediation training that I observed, the trainer began his training by lighting three candles: the first dedicated to the "martyrs of democracy", the second to "fighters for human rights", and the third to "victims of [state] torture." He then proceeded to describe the desperate state of human rights in Nepal: "When will this end? We don't know. Even the government does not obey the Constitution. We must protect the human rights guaranteed in our Constitution, especially women's rights. We must not suppress women's rights in the mediation process. This is what this training is for."
31. Amy J. Cohen, Debating the Globalization of U. S. Mediation: Politics, Power, and Practice in Nepal, 11 HARV. NEGOT. L. REV. 295, 297 (2006);
32. see also Raquel Aldana & Leticia M. Saucedo, The Illusion of Transformative Conflict Resolution: Mediating Domestic Violence in Nicaragua, 55 BUFF. L. REV. 1261, 1262 (2008) (suggesting that the mediation of domestic violence cases in Nicaragua by women's advocacy groups can infuse "private, individualized, and neoliberal" approaches to conflict resolution with "a public, institutional, and structural character").
33. See, e.g., Christine B. Harrington, Informalism as a Form of Legal Ordering, in THE OXFORD HANDBOOK OF LAW AND POLITICS 378, 389-90 (Keith E. Whittington et al. eds., 2008).
34. See, e.g., CHRISTINE B. HARRINGTON, SHADOW JUSTICE: THE IDEOLOGY AND INSTITUTIONALIZATION OF ALTERNATIVES TO COURT 169-71 (1985);
35. Richard L. Abel, Introduction to 1 THE POLITICS OF INFORMAL JUSTICE, supra note 8, at 6-7;
36. Merry & Milner, supra note 12, at 4-5, 26-28. Conversely, other analysts have shown how extralegal processes (e.g., grievance procedures) can influence judicial interpretations of formal law.
37. See, e.g., Lauren B. Edelman, Christopher Uggen & Howard S. Erlanger, The Endogeneity of Legal Regulation: Grievance Procedures as Rational Myth, 105 AMc. J. SOC. 406, 432-45 (1999).
38. See, e.g., Peter Fitzpatrick, The Impossibility of Popular Justice, in THE POSSIBILITY OF POPULAR JUSTICE, supra note 12, at 453, 463;
39. see also Annelise Riles, User Friendly: Informality and Expertise, 27 LAW & SOC. INQUIRY 613 (2002).
40. See infra Part I.
41. See infra Part II.
42. For a suggestive argument linking contemporary forms of ADR to neoliberal ideas and practices, see generally Amy J. Cohen, Dispute Systems Design, Neoliberalism, and the Problem of Scale, 14 HARV. NEGOT. L. REV. 51 (2009).
43. See also UGO MATTEI & LAURA NADER, PLUNDER: WHEN THE RULE OF LAW IS ILLEGAL 79 (2008) (describing today's "new specialties in conflict resolution", as part of "a hegemony of neo-liberal concepts of economic relations structured very much in an American corporate style");
44. Howard Gadlin, Bargaining in the Shadow of Management: Integrated Conflict Management Systems, in THE HANDBOOK OF DISPUTE RESOLUTION 371, 376 (Michael L. Moffitt & Robert C. Bordone eds., 2005) (arguing that new ADR initiatives to address workplace conflict are "formed almost exclusively around the concerns of managers: cutting costs, enhancing productivity, and containing conflict").
45. Fiss, The Forms of Justice, supra note 3, at 44.
46. I adapt these terms from Fiss, The Forms of Justice, supra note 3. In that article, Fiss distinguishes dispute resolution from his ideal of adjudication-that is, a form of dispute processing that aims primarily to give meaning to public values and to reform the structural conditions of our social life. By contrast, Fiss uses the term "dispute resolution" to describe forms of public and private adjudication (as well as other settlement technologies) that aim primarily to restore private relations.
47. See id. at 28-31;
48. see also Fiss, Against Settlement, supra note 1, at 1075;
49. Fiss, The Social and Political Foundations of Adjudication, supra note 3, at 122-26. Hence, for Fiss, ADR is a paradigmatic example of what he calls dispute resolution more generally.
50. Fiss, Against Settlement, supra note 1, at 1076-78.
51. Id. at 1078-79.
52. Id. at 1082-85.
53. Id. at 1085-87.
54. Id. at 1077.
55. Menkel-Meadow, For and Against Settlement, supra note 5, at 498 ("For me, the more fruitful inquiry is to ask under what circumstances adjudication is more appropriate than settlement, or vice-versa. In short, when settlement?");
56. Menkel-Meadow, Whose Dispute, supra note 6, at 2664-65 ("For me, the question is not 'for or against' settlement... but when, how, and under what circumstances should cases be settled?" (footnote omitted)).
57. Frank E. A. Sander, Alternative Dispute Resolution in the Law School Curriculum: Opportunities and Obstacles, 34 J. LEGAL EDUC. 229, 232 (1984) (referring specifically to Fiss, The Forms of Justice, supra note 3).
58. See MICHAL ALBERSTEIN, PRAGMATISM AND LAW: FROM PHILOSOPHY TO DISPUTE RESOLUTION 201-11 (2002).
59. Fiss conceded as much. For example, in 1986 he wrote, "I advanced [an account of adjudication] a few years ago, and nowadays I wonder whether I am... guided more by a duty to see the best in life rather than by a tough assessment of the facts." Owen M. Fiss, The Death of the Law?, 72 CORNELL L. REV. 1, 11-12 (1986)
60. [hereinafter Fiss, The Death of the Law?];
61. see also OWEN FISS, THE LAW AS IT COULD BE x, xiii (2003)
62. [hereinafter FISS, THE LAW AS IT COULD BE] (explaining that he republished a series of essays that defend "the rightful place of adjudication in American society" and the "conception of the judge as the paramount instrument of public reason" because "the present malaise cannot last forever. Sometime soon, as the new century unfolds, we will once again turn to law and accord the judiciary the respect it is due");
63. cf. ALBERSTEIN, supra note 29, at 200 (similarly explaining Fiss's defense of adjudication in terms of ideals).
64. Fiss, The Forms of Justice, supra note 3, at 58.
65. See, e.g., Owen M. Fiss, Objectivity and Interpretation, 34 STAN. L. REV. 739, 763 (1982)
66. [hereinafter Fiss, Objectivity and Interpretation] (calling upon readers to "[affirm] the truth of that which is being denied-the idea that the Constitution embodies a public morality");
67. see also Stanley Fish, Fish v. Fiss, 36 STAN. L. REV. 1325 (1984) (critiquing the arguments of Objectivity and Interpretation);
68. Owen M. Fiss, Conventionalism, 58 S. CAL. L. REV. 177 (1985) (responding to Fish v. Fiss).
69. Fiss, Against Settlement, supra note 1, at 1086.
70. See, e.g., Fiss, Objectivity and Interpretation, supra note 32, at 741. I use the term welfare state, despite its checkered history, in order to capture Fiss's aspiration that the state assume primary responsibility for social well-being, and because scholars today argue that the neoliberal state is decidedly activist in extending market values to social, political, and economic life.
71. See, e.g., Wendy Brown, Neoliberalism and the End of Liberal Democracy, in EDGEWORK: CRITICAL ESSAYS ON KNOWLEDGE AND POLITICS 39-44 (2005) ("[Unlike] classical economic liberalism, neoliberalism does not conceive of either the market itself or rational economic behavior as purely natural. Both are constructed-organized by law and political institutions, and requiring political intervention and orchestration. ").
72. Fiss, The Social and Political Foundations of Adjudication, supra note 3.
73. Fiss, Against Settlement, supra note 1, at 1085.
74. Fiss, The Social and Political Foundations of Adjudication, supra note 3, at 127.
75. In 2003, Fiss wrote: "I was able to see the connection between the new popularity of the dispute resolution model and the growing disdain for government power in all its forms-a development that would reach a zenith during the 1980s and the presidency of Ronald Reagan". FISS, THE LAW AS IT COULD BE, supra note 30, at 48;
76. see also Fiss, The Death of the Law?, supra note 30.
77. See Fiss, The Social and Political Foundations of Adjudication, supra note 3, at 127 (borrowing the phrase from ROBERT NOZICK, ANARCHY, STATE, AND UTOPIA (1974)).
78. Fiss, The Forms of Justice, supra note 3, at 37-39;
79. Fiss, The Social and Political Foundations of Adjudication, supra note 3, at 127.
80. Fiss, The Forms of Justice, supra note 3, at 18, 29.
81. Id. at 39.
82. See, e.g., JOSEPH B. STULBERG, TAKING CHARGE/MANAGING CONFLICT 142 (1987) ("It is irrelevant to the mediator if the terms of agreement are inefficient, shortsighted, or less than what one party could have gained in a winning lawsuit. What is relevant is that the parties have decided that, given their scheme of priorities, they can live with the solution, and the mediator is confident that the proposed terms will endure in practice.")
83. quoted in James R. Coben, Gollum, Meet Sméagol: A Schizophrenic Rumination on Mediator Values Beyond Self-Determination and Neutrality, 5 CARDOZO J. CONFLICT RESOL. 65, 79 (2004).
84. See Coben, supra, for a survey of similar views by mediation scholars and practitioners.
85. Friedrich A. von Hayek, The Principles of a Liberal Social Order, in THE ESSENCE OF HAYEK 363, 379 (Chiaki Nishiyama & Kurt R. Leube eds., 1984).
86. Fiss, The Forms of Justice, supra note 3, at 38.
87. See id. at 38-39. I should add that, for Fiss, courts are legitimate provided that they dispense justice within the confines of a democratic political system.
88. See infra note 102 and accompanying text.
89. See, e.g., Michael L. Moffitt, Customized Litigation: The Case for Making Civil Procedure Negotiable, 75 GEO. WASH. L. REV. 461, 479-80 (2007);
90. Nancy A. Welsh, Making Deals in Court-Connected Mediation: What's Justice Got To Do with It?, 79 WASH. U. L. Q. 787 (2001).
91. See generally Donna Shestowsky, Procedural Preferences in Alternative Dispute Resolution: A Closer, Modern Look at an Old Idea, 10 PSYCHOL. PUB. POL'Y & L. 211 (2004) (studying disputants' preferences for direct participation and control).
92. Consider Fiss's criticism of Martin v. Wilks, 490 U. S. 755 (1989), which affirmed the U. S. Court of Appeals for the Eleventh Circuit's decision to overturn a structural decree designed to end race-based discrimination in a city fire department because white firefighters did not receive a hearing on their claim. Fiss argued that, at times, judges could and should limit individual participatory rights to serve the welfare and substantive rights of others.
93. Owen M. Fiss, The Allure of Individualism, 78 IOWA L. REV. 965, 978-79 (1993) [hereinafter Fiss, The Allure of Individualism];
94. see also id. at 972-73, 978 ("We may value individual participation in structural litigation, but only to serve instrumental rather than dignitary ends: to insure that all interests are accounted for and that the strongest arguments are made on their behalf.").
95. For example, Fiss argued that [a] conception of adjudication that strictly honors the right of each affected individual to participate in the process seems to proclaim the importance of the individual, but actually leaves the individual without the institutional support necessary to realize his true self. In fact, the individual participation axiom would do little more than throw down an impassable bar... to the one social process that has emerged with promise for preserving our constitutional values and the ideal of individualism in the face of the modern bureaucratic state-structural reform.
96. Fiss, The Forms of Justice, supra note 3, at 44;
97. cf. Fiss, Against Settlement, supra note 1, at 1080-81 ("The authority of judgment arises from the law... thus we allow judgment to bind persons not directly involved in the litigation even when we are reluctant to have settlement do so.").
98. Fiss, Objectivity and Interpretation, supra note 32, at 763.
99. See, e.g., DAVID HARVEY, A BRIEF HISTORY OF NEOLIBERALISM 2 (2005).
100. Fiss, The Social and Political Foundations of Adjudication, supra note 3, at 127.
101. Id. at 127-28.
102. Id. at 127.
103. Id. at 128.
104. Id.
105. Fiss, The Forms of Justice, supra note 3, at 38.
106. Fiss, The Social and Political Foundations of Adjudication, supra note 3, at 128.
107. Fiss, The Forms of Justice, supra note 3, at 18-28 (advocating for a special type of adjudication he called structural reform).
108. See Fiss, The Allure of Individualism, supra note 48, at 978-79.
109. FISS, THE LAW AS IT COULD BE, supra note 30, at 58.
110. Id. at 15.
111. Fiss, The Social and Political Foundations of Adjudication, supra note 3, at 128. He suggested further that public values are characteristically "embodied in an authoritative legal text, such as the Constitution. "
112. Id. at 121;
113. cf. Owen Fiss, Law Is Everywhere, 117 YALE L. J. 256, 259 (2007) (describing the U. S. Constitution as "the embodiment of the public morality of the nation... laden with a special normative value that derives from the role it plays in defining our national identity-what it means to be American-and in articulating the governing principles of our society").
114. For a critique of Fiss's unwillingness to describe public values in specific substantive terms, see Clare Dalton, The Faithful Liberal and the Question of Diversity, 12 HARV. WOMEN'S L. J. 1, 4 (1989).
115. See, e.g., Fiss, The Forms of Justice, supra note 3, at 15, 58.
116. Id. at 9 (citing RONALD DWORKIN, TAKING RIGHTS SERIOUSLY (1977);
117. Ronald Dworkin, No Right Answer?, in LAW, MORALITY AND SOCIETY: ESSAYS IN HONOUR OF H. L. A. HART 58 (P. M. S. Hacker & J. Raz eds., 1977)).
118. On this distinction between public/normative value and private/economic value, see DAVID GRAEBER, TOWARD AN ANTHROPOLOGICAL THEORY OF VALUE: THE FALSE COIN OF OUR OWN DREAMS 1-2 (2001).
119. Fiss, The Social and Political Foundations of Adjudication, supra note 3, at 122-23.
120. Fiss, The Forms of Justice, supra note 3, at 41.
121. Id. at 29.
122. Id. at 12. Fiss argued that judges "are caught in a network of so-called 'disciplining rules' which, like a grammar, define and constitute the practice of judging and are rendered authoritative by the interpretive community of which [judges] are part."
123. Fiss, The Death of the Law?, supra note 30, at 11. Fiss explained further that these rules "constrain, not determine, judgment, "
124. id., and allow "the person offering the interpretation" to "transcend [their] particular vantage point."
125. Fiss, Objectivity and Interpretation, supra note 32, at 744.
126. See Fiss, The Forms of Justice, supra note 3, at 12. For Fiss, keeping the peace, resolving disputes, and maximizing private interests are merely secondary-and not necessary-consequences of this primary judicial function.
127. Id. at 29-31.
128. See, e.g., Joseph William Singer, The Player and the Cards: Nihilism and Legal Theory, 94 YALE L. J. 1, 5-6 (1984) (summarizing the work of various legal scholars who argue that the model of legal reasoning endorsed by Fiss is socially and historically contingent, indeterminate and contradictory, and cannot provide objective answers to legal questions or explain the actual process of judicial decision making).
129. Lauren K. Robel, Private Justice and the Federal Bench, 68 IND. L. J. 891, 894 (1993);
130. see also Judith Resnik, For Owen M. Fiss: Some Reflections on the Triumph and the Death of Adjudication, 58 U. MIAMI L. REV. 173, 176 (2003) (arguing that our contemporary generation of judges is "suspicious of adjudication" and prefers "processes sometimes styled 'alternative dispute resolution' (ADR) and sometimes 'dispute resolution' (DR)", which are "committed to the utility of contract and look[] to the participants to validate outcomes through consensual agreements"). Consider, for example, Ohio Supreme Court Chief Justice Thomas Moyer's description of the function of adjudication in a state constitutional case ordering an overhaul of public school financing. He writes, "Courts exist as forums for the resolution of disputes. Ideally, parties involved in litigation are able themselves to negotiate a settlement of their disputes, through mediation or otherwise. When that does not occur, it is the responsibility of the court to render a final judgment...." DeRolph v. State, 780 N. E.2d 529, 536 (Ohio 2002) (Moyer, C. J., dissenting).
131. Owen M. Fiss, The Law Regained, 74 CORNELL L. REV. 245, 249 (1989) [hereinafter Fiss, The Law Regained].
132. Elsewhere he argues that courts "are more likely to do justice than any other institution". Owen M. Fiss, The Autonomy of Law, 26 YALE J. INT'L L. 517, 520 (2001) [hereinafter Fiss, The Autonomy of Law] (emphasis added);
133. see also Owen M. Fiss, Out of Eden, 94 YALE L. J. 1669, 1673 (1985) [hereinafter Fiss, Out of Eden].
134. McThenia & Shaffer, supra note 6, at 1664-66.
135. Fiss, Out of Eden, supra note 76, at 1669-70.
136. Seul, supra note 7, at 953 (emphasis added) (reading Fiss).
137. Fiss, Out of Eden, supra note 76, at 1669.
138. Id. at 1669, 1671.
139. Id. at 1672 (quoting McThenia & Shaffer, supra note 6, at 1665 n. 33 (summarizing a conversation with Milner Ball)). Although Ball uses the phrase "community norms", I replaced the word "community" with "public", which better describes the national public that Fiss envisioned.
140. Fiss, Objectivity and Interpretation, supra note 32, at 741.
141. Fiss, The Law Regained, supra note 75, at 249;
142. see also Owen Fiss, Between Supremacy and Exclusivity, 57 SYRACUSE L. REV. 187, 204 (2007) [hereinafter Fiss, Between Supremacy and Exclusivity] (arguing that judges aim "to arrive at a correct interpretation [, not] the one that most or all people agree with.... [or] accept").
143. Owen M. Fiss, Why the State?, 100 HARV. L. REV. 781, 794 (1987).
144. Cf. FISS, THE LAW AS IT COULD BE, supra note 30, at ix ("Today-[f]aith in public reason has been shattered, and so has the belief that the judiciary is able or willing to use reason to give concrete meaning to constitutional values.").
145. Fiss, Against Settlement, supra note 1, at 1089.
146. See generally DEEPAK LAL, THE POVERTY OF 'DEVELOPMENT ECONOMICS' 1-2 (1983) (arguing against "Dirigiste Dogma").
147. BEN FINE, SOCIAL CAPITAL VERSUS SOCIAL THEORY: POLITICAL ECONOMY AND SOCIAL SCIENCE AT THE TURN OF THE MILLENNIUM 132-35 (2001) (describing "[t]he Washington consensus: from modernisation to neo-liberalism" and providing a concise review of this history).
148. See David Trubek, The "Rule of Law" in Development Assistance: Past, Present, and Future, in THE NEW LAW AND ECONOMIC DEVELOPMENT: A CRITICAL APPRAISAL 74, 81-84 (David M. Trubek & Alvaro Santos eds., 2006);
149. see also Thomas Carothers, The Problem of Knowledge, in PROMOTING THE RULE OF LAW ABROAD: IN SEARCH OF KNOWLEDGE 15, 19-20 (Thomas Carothers ed., 2006).
150. See Cohen, supra note 13, at 309-11;
151. see also Jean R. Sternlight, Is Alternative Dispute Resolution Consistent with the Rule of Law? Lessons from Abroad, 56 DEPAUL L. REV. 569, 572-77 (2007) (describing how the U. S. Agency for International Development (USAID), the American Bar Association, and the World Bank promote various ADR projects as part of their rule-of-law initiatives).
152. For examples, see SCOTT BROWN ET AL., ALTERNATIVE DISPUTE RESOLUTION PRACTITIONERS GUIDE 1 (1998) (analyzing "uses of ADR related to the rule of law" in Bangladesh, Bolivia, South Africa, Sri Lanka, and the Ukraine), and Anthony Wanis-St.
153. John, Implementing ADR in Transitioning States: Lessons Learned from Practice, 5 HARV. NEGOT. L. REV. 339, 347-72 (2000) (discussing USAID-sponsored ADR interventions in Bolivia).
154. See Fiss, The Autonomy of Law, supra note 76, at 517-20.
155. Id. at 520-21.
156. Here, Fiss describes public values not, or not only, as norms shared by existing national publics but as approaching universal standards of value.
157. Fiss, The Autonomy of Law, supra note 76, at 521.
158. Id. at 522-23.
159. Id. at 517.
160. Id. at 523-26.
161. Fiss, Between Supremacy and Exclusivity, supra note 84, at 201.
162. See id.;
163. see also Fiss, The Forms of Justice, supra note 3, at 38.
164. Fiss, The Autonomy of Law, supra note 76, at 523.
165. Id. at 526.
166. For a broad overview of contemporary legal scholarship that seeks to "reconcil[e] democracy and rights" through theories of popular deliberation, see Simone Chambers, Deliberative Democratic Theory, 6 ANN. REV. POL. SCI. 307, 309-12 (2003).
167. See generally Owen M. Fiss, Human Rights as Social Ideals, in HUMAN RIGHTS IN POLITICAL TRANSITIONS: GETTYSBURG TO BOSNIA 263 (Carla Hesse & Robert Post eds., 1999) [hereinafter Fiss, Human Rights as Social Ideals].
168. Id. at 266;
169. see also Owen M. Fiss, Perspective: The Limits of Judicial Independence, 25 U. MIAMI INTER-AM. L. REV. 57, 66 (1993) (describing human rights as "transcendent values").
170. Fiss, Human Rights as Social Ideals, supra note 104, at 265-66.
171. Id. at 267.
172. Id. (emphasis added).
173. Id. at 274.
174. See id. at 273-74.
175. Id. at 275 (emphasis added).
176. Id.
177. Fiss, The Forms of Justice, supra note 3, at 16.
178. Owen Fiss, In the Shadow of War, 58 U. MIAMI L. REV. 449, 452 (2003).
179. Fiss, Human Rights as Social Ideals, supra note 104, at 275.
180. Fiss, The Law Regained, supra note 75, at 246-47;
181. cf. Duncan Kennedy, Three Globalizations of Law and Legal Thought: 1850-2000, in THE NEW LAW AND ECONOMIC DEVELOPMENT, supra note 90, at 19, 72 ("If law is politics... by other means-it seems to me also true that politics is law by other means, in the sense that politics flows as much from the unmeetable demand for ethical rationality in the world as from the economic interests or pure power lust with which it is so often discursively associated." (citing Max Weber, Politics as a Vocation, in FROM MAX WEBER: ESSAYS IN SOCIOLOGY 77 (H. H. Gerth and C. Wright Mills eds., 1946))).
182. Fiss, The Death of the Law?, supra note 30, at 14.
183. Carrie Menkel-Meadow, Mothers and Fathers of Invention: The Intellectual Founders of ADR, 16 OHIO ST. J. ON DISP. RESOL. 1, 30 (2000);
184. see also Carrie Menkel-Meadow, Deliberative Democracy and Conflict Resolution: Two Theories and Practices of Participation in the Polity, DISP. RESOL. MAG., Winter 2006, at 18;
185. see also infra note 139.
186. JANE STROMSETH, DAVID WIPPMAN & ROSA BROOKS, CAN MIGHT MAKE RIGHTS? BUILDING THE RULE OF LAW AFTER MILITARY INTERVENTIONS 311, 334-40 (2006).
187. Id. at 337.
188. See, e.g., id. at 334-40;
189. see also Cynthia Alkon, The Cookie Cutter Syndrome: Legal Reform Assistance Under Post-Communist Democratization Programs, 2002 J. DSP. RESOL. 327, 334 (arguing that ADR can build "faith and confidence in the legal systems" and "foster respect for rule of law");
190. Mariana Hernández Crespo, A Systemic Perspective of ADR in Latin America: Enhancing the Shadow of the Law Through Citizen Participation, 10 CARDOZO J. CONFLICT RESOL. 91, 97 (2008) (arguing that participatory private dispute resolution mechanisms "can... transform cultural attitudes and norms toward the law in Latin America"). For scholarship generally analyzing the transnational spread and "vernacularization" of human rights discourse through extralegal means
191. see SALLY ENGLE MERRY, HUMAN RIGHTS AND GENDER VIOLENCE: TRANSLATING INTERNATIONAL LAW INTO LOCAL JUSTICE (2006).
192. See alsoMark Goodale, The Globalization of Sympathetic Law and Its Consequences, 27 LAW & SOC. INQUIRY 595 (2002).
193. For an analysis of the conceptual underpinnings of this vision of ADR, see Amy J. Cohen, Negotiation, Meet New Governance: Interests, Skills, and Selves, 33 LAW & SOC. INQUIRY 503, 522-27 (2008) [hereinafter Cohen, Negotiation].
194. See Fiss, Human Rights as Social Ideals, supra note 104, at 275.
195. This popular Zapatista slogan served to rally left activists to convene international gatherings under the same name. See, e.g., Zapatista National Liberation Army, A Call from Chiapas: "First Declaration of La Realidad for Humanity and Against Neoliberalism" (1996), reprinted in NOT FOR SALE: IN DEFENSE OF PUBLIC GOODS xxi-xxiii (Anatole Anton et al. eds., 2000). The Zapatistas are known (among other things) for their consultas, or decision making through consultation and the search for consensus. For a brief description, see Interview by Pablo Salazar Devereaux, Ana Laura Hernández, Eugenio Aguilera, and Gustavo Rodríguez with Subcomandante Marcos, Zapatista National Liberation Army, in the Lacandon Jungle, Mexico (May 11, 1994), http://www.struggle.ws/mexico/ezln/anmarin.html.
196. See supra note 5. Andrea Schneider recently argued an analogous point in a transnational context. Writing about dispute resolution processes in postconflict states, she proposed that "the rule of law must first be established in courts" before we can rely on consensual dispute resolution processes to promote values such as equality and justice. Andrea Kupfer Schneider, The Intersection of Dispute Systems Design and Transitional Justice, 14 HARV. NEGOT. L. REV. 289, 311 (2009).
197. For a few examples, see generally Duncan Kennedy, Form and Substance in Private Law Adjudication, 89 HARV. L. REV. 1685 (1976);
198. Joseph W. Singer, Catcher in the Rye Jurisprudence 35 RUTGERS L. REV. 275 (1983);
199. and Mark V. Tushnet, Following the Rules Laid Down: A Critique of lnterpretivism and Neutral Principles, 96 HARV. L. REV. 781 (1983).
200. In 2003, when he republished Against Settlement, Fiss included this draft response by Cover, which he found in Cover's papers after his death: I am insistent that the apparent capacity of the courts to fashion a life of shared meaning is always seriously compromised and often destroyed by the violence which is the implicit or explicit threat against those who do not share the judge's understanding. I, like Owen, celebrate the achievements of federal courts in destroying apartheid in America - But it is Fiss not Cover who is the romantic here. It is Fiss who supposes that these achievements emerge out of a shared community of interpretation that is national in character. I support those efforts because I believe them right and justified, because I am sufficiently committed to them to join with others in imposing our will on those
201. FISS, THE LAW AS IT COULD BE, supra note 30, at 92.
202. Some contested Fiss's description of adjudication, but often on empirical grounds. See, e.g., Jethro K. Lieberman & James F. Henry, Lessons from the Alternative Dispute Resolution Movement, 53 U. CHI. L. REV. 424, 434 (1986) ("Fiss's position is seriously weakened by his failure to offer proof that court judgments are more just.");
203. Menkel-Meadow, Whose Dispute, supra note 6, at 2669 ("Those who criticize settlement suffer from... 'litigation romanticism,' with empirically unverified assumptions about what courts can or will do."
204. (quoting Carrie Menkel-Meadow, Ethics and the Settlements of Mass Torts: When the Rules Meet the Road, 80 CORNELL L. REV. 1159, 1173 (1995))).
205. Vilhelm Aubert, Competition and Dissensus: Two Types of Conflict and of Conflict Resolution, 7 J. CONFLICT RESOL. 26, 27-28 (1963).
206. See, e.g., THOMPSON, supra note 5, at 100-0 1;
207. URY, BRETT & GOLDBERG, supranote 5, at 16-18.
208. See, e.g., Roger Fisher, Fractionating Conflict, 93 DAEDALUS 920, 922-23 (1964);
209. see also Gabriella Blum & Robert H. Mnookin, When Not To Negotiate, in THE NEGOTIATOR'S FIELDBOOK: THE DESK REFERENCE FOR THE EXPERIENCED NEGOTIATOR 101, 110 (Andrea Kupfer Schneider & Christopher Honeyman eds., 2006).
210. For a brief overview of early dispute resolution literature, see Cohen, Negotiation, supra note 122, at 509-10.
211. Even early pioneers of large-scale public dispute resolution distinguished "distributional disputes" from disputes about the "definition of constitutional or legal rights." SUSSKIND & CRUIKSHANK, supra note 5, at 17. For example, in their 1987 book on resolving public disputes, Susskind and Cruikshank explain that although they are "firmly convinced that consensus-building strategies can help" resolve disputes about "tangible gains and losses", they prefer to "leave it to others to decide whether consensual approaches to dispute resolution can (or should) be used in resolving constitutional questions."
212. Id. But see infra note 150 and accompanying text.
213. ROGER FISHER & WILLIAM URY, GETTING TO YES: NEGOTIATING AGREEMENT WITHOUT GIVING IN 23 (Bruce Patton ed., 1981);
214. see also DOUGLAS STONE, BRUCE PATTON and SHEILA HEEN, DIFFICULT CONVERSATIONS: HOW TO DISCUSS WHAT MATTERS MOST 132 (1999)
215. quoted in ALBERSTEIN, supra note 29, at 271 ("The truth is, there is no 'right choice.' There is no way to know in advance how things will really turn out. So don't spend your time looking for the one right answer about what to do. It's not only a useless standard, it's crippling.").
216. See, e.g., Sheila Heen & Douglas Stone, Perceptions and Stories, in THE NEGOTIATOR'S FIELDBOOK, supra note 131, at 343, 344-45 (encouraging negotiators to recognize how their sense of "what happens" in the world is constructed through perceptual feedback loops and informed by prior experiences and expectations);
217. Nancy A. Welsh, Perceptions of Fairness, in THE NEGOTIATOR'S FIELDBOOK, supra note 131, at 165, 171 ("[F]aimess-whether distributive or procedural-is largely a matter of perception. ");
218. see also Carrie Menkel-Meadow, The Trouble with the Adversary System in a Post-modern, Multi-cultural World, 1 J. INST. FOR STUDY LEGAL ETHICS 49, 69-72 (1996) (proposing models of dispute resolution that are "mindful of the post-modern and multi-cultural critiques of legal knowledge").
219. David E. Matz, Ignorance and Interests, 4 HARV. NEGOT. L. REV. 59, 81 (1999).
220. ALBERSTEIN, supra note 29, at 313.
221. See id. at 257, 301 (describing the private orientation of significant strands of ADR scholarship and practice);
222. cf. Andrea Kupfer Schneider & Christopher Honeyman, Introduction: "A Canon of Negotiation" Begins To Emerge, in THE NEGOTIATOR'S FIELDBOOK, supra note 131, at 1 (proposing to expand traditionally private theories of negotiation into a social praxis of "peacemaking... at many levels");
223. Joseph B. Stulberg, Questions, 17 OHIO ST. J. ON DISP. RESOL. 531, 534 (2002) (suggesting that, although once debatable, evidence now supports the idea that mediation is appropriate for "complex... social controversies of our time").
224. See, e.g., Crespo, supra note 121 (arguing that ADR-like consensus-building processes can enhance citizen participation in governance and the legitimacy of political outcomes);
225. Nancy D. Erbe, Appreciating Mediation's Global Role in Promoting Good Governance, 11 HARV. NEGOT. L. REV. 355, 357 (2006) (arguing that "mediation advances good governance, at micro and macro levels of society, by heightening inclusive participation, egalitarian decision-making, and stakeholder responsiveness").
226. See, e.g., Gemma Smyth, Considering Democracy and ADR: Diversity Based Practice in Public Collaborative Processes, 19 WINDSOR REV. LEGAL & SOC. ISSUES 13 (2005) (reviewing a substantial amount of recent scholarship suggesting that ADR can enhance the extent and quality of democracy in a society).
227. See, e.g., Schneider, supra note 125, at 309-10, 313-15 (proposing to extend ADR values, such as individual participation and self-determination, to design "more victimfocused" truth commissions and international tribunals).
228. See, e.g., supra notes 120-21 and accompanying text;
229. see also Christopher Gibson & Michael Woolcock, Empowerment and Local Level Conflict Mediation in Indonesia: A Comparative Analysis of Concepts, Measures, and Project Efficacy (World Bank Policy Research, Working Paper No. 3713, 2005), available at http://ssrn.com/abstract= 806225 (exploring whether collaborative extrajudicial conflict resolution can enable lower-status parties to challenge elite interests).
230. Amy Gutmann, How Not To Resolve Moral Conflicts in Politics, 15 OHIO ST. J. ON DISP. RESOL. 1, 1 (1999).
231. Id. at 6-8 (characterizing the work of Roger Fisher and his coauthors). For Gutmann and her coauthor Dennis Thompson, beyond procedural fairness and consensual agreement, principles of "basic rights" and "basic liberty and opportunity" must inform "what counts as a morally legitimate resolution of disagreement." AMY GUTMANN & DENNIS THOMPSON, DEMOCRACY AND DISAGREEMENT 17 (1996).
232. Seul, supra note 7, at 963, 964 (drawing on principles developed by Gutmann and others).
233. Id. at 881.
234. Hiro N. Aragaki, Deliberative Democracy as Dispute Resolution? Conflict, Interests, and Reasons, 24 OHIO ST. J. ON DISP. RESOL. 407, 412 (2009).
235. Id. at 412-14.
236. Carrie Menkel-Meadow, The Lawyer as Consensus Builder: Ethics for a New Practice, 70 TENN. L. REV. 63, 70 (2002) (quoting CARLOS SANTIAGO NINO, THE CONSTITUTION OF DELIBERATIVE DEMOCRACY 110 (1996) (discussing and citing JÜRGEN HABERMAS, Discourse Ethics: Notes on a Program of Philosophical Justification, in MORAL CONSCIOUSNESS AND COMMUNICATIVE ACTION 43-115 (Christian Lenhardt & Shierry Weber Nicholsen trans., 1990))).
237. Id. at 76-77; Carrie Menkel-Meadow, The Lawyer's Role (s) in Deliberative Democracy, 5 NEV. L. J. 347, 365-66 (2004-2005).
238. See, e.g., supra note 7. Lawrence Susskind and Jennifer Brown recently developed a teaching tool to engage students in the possibilities and challenges of mediating values-based legal disputes.
239. See Williams v. Northville, Teacher's Package, Program on Negotiation at Harvard Law School (2009) (prepared by Kate Harvey & David Kovick, supervised by Lawrence Susskind & Jennifer Brown) (on file with the Fordham Law Review);
240. see also Jennifer Gerarda Brown, Peacemaking in the Culture War Between Gay Rights and Religious Liberty 2 (2009) (unpublished manuscript, on file with author) ("[M]ediation holds tremendous potential in legal disputes that pit 'gay rights' against 'religious liberty.'");
241. Michael Hamilton & Dominic Bryan, Deepening Democracy? Dispute System Design and the Mediation of Contested Parades in Northern Ireland, 22 OHIO ST. J. ON DISP. RESOL. 133, 133 (2006) (arguing that ADR institutions can "build consensus about the conception of justice underpinning public life, and so provide societies with 'morally defensible processes' capable of responding to conflict in politics" (citing Gutmann, supra note 142, at 1)).
242. Fiss, The Death of the Law?, supra note 30, at 15.
243. Id. at 13.
244. See Ronen Shamir, Corporate Social Responsibility: Towards a New Market-Embedded Morality?, 9 THEORETICAL INQUIRIES L. 371, 373 (2008) (describing a general "moralization of economic action" that reframes social and environmental concerns from within market principles);
245. see also FINE, supra note 89, at 168-69 (characterizing neoliberalism's recent attention to social objectives as "the colonisation of the non-economic by the economists", and as a "severe setback to development studies");
246. Kerry Rittich, The Future of Law and Development: Second-Generation Reforms and the Incorporation of the Social, in THE NEW LAW AND ECONOMIC DEVELOPMENT, supra note 90, at 203, 233 ("Social objectives are embraced [by international financial institutions] not only because they are human rights or are socially desirable, but because they enhance growth.... [Thus] those that appear to most directly enhance the extent and quality of market participation... are preferred over those that do not.").
247. Fiss himself grapples with a similar set of observations in The Autonomy of Law. See supra notes 92-93 and accompanying text.
248. Consider Andrea Muehlebach's recent study of the privatization of care work in Italy. She illustrates how the erosion of the Italian welfare state includes not only social atomization and commodification, but also the promise of moral community, ethical labor, and face-to-face altruism. Andrea Karin Muehlebach, The Moral Neoliberal: Welfare State and Ethical Citizenship in Contemporary Italy (June 2007) (unpublished Ph. D. dissertation, University of Chicago), available at http://gradworks.umi.com/32/62/3262273.html.
249. Indeed, David Kennedy argues that it is precisely because human rights must maintain the claim to universality and neutrality, [that] the human rights movement practices a systematic lack of attention to background sociological and political conditions which will determine the meaning a right has in particular contexts, rendering the evenhanded pursuit of 'rights' vulnerable to all sorts of distorted, and distinctly non-neutral outcomes. David Kennedy, The International Human Rights Movement: Part of the Problem?, 2001 EUR. HUM. RTS. L. REV. 245, 253.
250. See generally MARK GOODALE, SURRENDERING TO UTOPIA: AN ANTHROPOLOGY OF HUMAN RIGHTS 115-27 (2009) (discussing various conceptual and political challenges involved in constructing doctrines of collective human rights).
251. On this point, Susan Marks's analysis strikes me as exactly right. She writes, "indeterminacy and its antipode, determinacy, are not properties of... law. Rather, they are arguments, the emancipatory force of which is not fixed, but context-dependent." Susan Marks, International Judicial Activism and the Commodity-Form Theory of International Law, 18 EUR. J. INT'L L. 199, 199 (2007).