Fairness Beyond the Adversary System: Procedural Justice Norms for Legal Negotiation
Fairness Beyond the Adversar y System: Procedural Justice Norms for Legal Negotiation
Rebecca Holland-Blumoff 0 1
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1 Washington University School of Law , USA
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The tale of the vanishing trial is, by now, familiar and well worn.1 The arc
and import of the narrative differ by teller: some decry the loss of an
adjudicated outcome, either by judge or by jury,2 and some praise the
proliferation of alternative methods for dispute resolution that might allow
for more flexibility and efficiency.3 Either way, the decline in trials and
adjudicated outcomes raises critical questions about the nature of the
adversary system. The decline in trials has raised particular concerns in the
criminal context, where “negotiated justice” has drawn a phalanx of critics.4
Plea bargaining is susceptible to a negotiation analysis,5 and understanding
plea bargaining as an essential interpersonal interaction casts doubt on the
idea that the criminal adversarial system enshrines the hallmarks of a just,
neutral process, rooted firmly in the rule of law. In the civil context, though,
worries are sometimes less acute: liberty is not at stake, the power
differential may be less dramatic between the parties, and the private ordering
* Professor of Law, Washington University School of Law; Visiting Professor of Law,
Harvard Law School, fall 2016. Thanks to Susan Appleton, Deborah Dinner, Matt Bodie, and
participants in Fordham University School of Law’s colloquium entitled Civil Litigation
Ethics at a Time of Vanishing Trials, particularly Judith Resnik and Bruce Green, for helpful
commentary and suggestions. For an overview of the colloquium, see Judith Resnik, Lawyers’
Ethics Beyond the Vanishing Trial: Unrepresented Claimants, De Facto Aggregations,
Arbitration Mandates, and Privatized Processes, 85 FORDHAM L. REV. 1899 (2017).
at issue in these cases has been subject to a “market” type of analysis.6
However, the shift from a system of public, adversarial, and ordered civil
dispute resolution to a set of private, negotiated, and ad hoc resolutions has
raised serious concerns about our enforcement of the laws and our
understanding of legal outcomes.
The disappearance of adjudicated civil disputes shines a keen light on what
we—as a society, as individuals, and as legal professionals—expect and want
from so-called “private” ordering. This Article takes as fundamental
premises (
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) that laws and regulations play a vital role in our society and (
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that even in a system of largely nonadjudicated justice, law and legal rules
should remain important in guiding the resolution of disputes in situations
where those rules would otherwise apply.7 Law and legal rules are our
society’s expression of justice; if we want outcomes to legal disputes that at
least comport with justice, what does the absence of trials tell us about the
optimal nature of negotiated justice? If justice is a key ideal for the resolution
of legal disputes, how can lawyers best achieve outcomes that are not, at a
minimum, at odds with the law? If we are negotiating, as I have argued in
prior work, in the “shadow of legal process,”8 what are the implications for
the appropriate behavior of lawyers in an adversary system?
One key component of fairness and legitimacy for our legal system is
procedural justice—the fairness of the process used to reach an outcome.
Almost a half century of robust empirical research has clearly established the
importance of procedural justice in how people assess the legitimacy of the
legal system, leading to important judgments about adherence to decisions as
6. For analysis using a market-based approach, see generally Maurits Barendrecht &
Berend R. de Vries, Fitting the Forum to the Fuss with Sticky Defaults: Failure in the Market
for Dispute Resolution Services?, 7 CARDOZO J. CONFLICT RESOL. 83 (2005); Frank E.A.
Sander & Stephen B. Goldberg, Fitting the Forum to the Fuss: A User-Friendly Guide to
Selecting an ADR Procedure, 10 NEGOT. J. 49 (1994); Steven Shavell, Alternative Dispute
Resolution: An Economic Analysis, 24 J. LEGAL STUD. 1 (1995). But see Fiss, supra note 2, at
1075 (“Settlement is for me the civil analogue of plea bargaining: Consent is often coerced;
the bargain may be struck by someone without authority; the absence of a trial and judgment
renders subsequent judicial involvement troublesome; and although dockets are trimmed,
justice may not be done. Like plea bargaining, settlement is a capitulation to the conditions
of mass society and should be neither encouraged nor praised.”).
7. By this, I certainly mean to exclude a category of “nonlegal” disputes—those for
which law typically provides no (...truncated)