The Contingency of Openness in Courts: Changing the Experiences and Logics of the Public's Role in Court-Based ADR

Abstract

Debate exists about how much alternative dispute resolution ("ADR") is used in courts and about the metrics by which to evaluate its impact. Yet on two measures-the volume of rulemaking and the privatization of court-based interactions-the results are unambiguous: courts have promulgated hundreds of rules governing ADR, and those rules rarely protect rights of the public to know much about either the processes or the results. Rather, court-based procedural rules are increasingly becoming contract-promoting rules, encouraging parties to conclude disputes without adjudication. In this essay in honor of Professor Stephen Subrin, I explore the centrality of open courts" to judicial legitimacy. Courts provide opportunities for democratic engagements with the production and application of law. The public's right of access to observe proceedings in courts sustains judicial independence, legitimates public investments in the judiciary, and offers routes to oversight when courts fail to live up to obligations to treat disputants fairly. These constitutional values ought to inform the shape of procedural innovations in courts. Court-based arbitration and court-based settlement programs, like court-based trials, should be regulated to reflect the constitutional obligations to provide a role for the public.