Whither and Whether Adjudication?

Abstract

Participants in this symposium have been asked to look forward and consider what shape adjudication will take in the century that has just begun. To do so, we need to look back to what the twentieth century produced by way of adjudicatory possibilities. In this brief Essay, I sketch (in part through a few charts and photographs) how adjudication has changed over the past one hundred years. Adjudication is an ancient practice, long predating the founding of the United States. But only in the twentieth century did adjudication become a requisite aspect of successful, market-based economies. During the course of that century, democratic principles of equality insisted on the dignity of all persons. An array of individuals became eligible to bring claims into courts, and both public and private providers became accountable through adjudication to explain a variety of their decisions. In the United States, national groups of lawyers who were supported by leading judges and academics pressed Congress to create new statutory rights, to endow federal courts with authority over such claims, and to augment judicial resources. The growth in statutory mandates, the power of federal law to preempt state lawmaking, and the protections accorded life-tenured judges by Article III of the U.S. Constitution made the federal courts an attractive venue for litigants aiming to establish or to preserve principles of law. That increased reliance on the federal system resulted in its expansion as well as in efforts to diversify adjudicatory opportunities by using agencies and by reformulating the procedural rules of courts. Some litigants were routed to the life-tenured judiciary, increasingly interested in settling cases, and others were sent to administrative agencies, once celebrated for their simpler process but more recently a focus of concern about their deficient process.