The Public Nature of Private Adjudication

Abstract

The system of public justice is in trouble, perhaps deeper trouble than that in which the system of justice perennially finds itself. It is beset by such delay that civil cases on the general docket in many jurisdictions take more than five years to get to trial. "Big" civil cases involve a discovery and pretrial apparatus that makes the legal process in Bleak House pale in comparison and a trial stage in which, some observers believe, the issues are untriable, at least by a jury. Civil cases generally involve seemingly excessive transaction costs, both for the parties and for the public. Criminal cases are brought to trial more rapidly under the imperative of the speedy trial requirement. However, this adherence to a nominally efficient schedule on the criminal side is achieved at a high price, often revealed in the prosecutor's erratic selection of cases for prosecution. Symptoms of trouble on the criminal side include a large number of dispositions without trial and pervasive plea bargaining. Big criminal cases become so complex that they, too, max be untriable by ordlinary procedure, while ordinary criminal cases are placed on a procedural treadmill that trivializes the ideals of criminal procedure and the -social purpose of penal sanctions Many domains of administrative agency adjudication suffer similar ills. The obvious symptoms are, again, delay and high transaction costs; the less obvious indications are erratic patterns of disposition and the dominance of process over substantive coherence.