Uncovering, Disclosing, and Discovering How the Public Dimensions of Court-Based Processes Are at Risk

Abstract

In this essay—considering "privacy" and "secrecy" in courts—I first offer a brief history of the public performance, through adjudication, of the power of rulers, who relied on open rituals of judgment and punishment to make and maintain law and order. Second, I turn to consider why, during the twentieth century, the federal courts became an unusually good source of information about legal, political, and social conflict. Third, I map how, despite new information technologies, knowledge about conflicts and their resolution is being limited by the devolution of court authority to agencies, by the outsourcing of decisions to private providers, and by the internalization in courts of rules that promote private management and settlement of conflicts in lieu of adjudication. Fourth, I argue that deployment of new procedures of dispute resolution requires new answers to questions about what processes should be presumptively public and that, given their political implications, these answers should not be left to judges, as rulemakers or doctrine-producers alone. Fifth, I explain why new regulations are needed to protect the public dimensions of courts and to create public dimensions for their alternatives. Public processes generate not only knowledge about the uses of power but also a commitment to fair treatment by government, to accountability in government, and to norm development, all of which should not be controlled exclusively by the parties to a dispute nor by those empowered to resolve it.