The identification of courts as “open” and “public” institutions is commonplace in national and transnational conventions. But even as those attributes are taken for granted, the privatization of adjudication is underway. This Article explores how—during the last few centuries—public procedures came to be one of the attributes defining certain decision-making institutions as “courts.” The political and theoretical predicates for such practices can be found in the work of Jeremy Bentham, a major proponent of what he termed “publicity,” a practice he (...) commended by detailing the architecture for various entities—from the Panopticon for prisoners to the Parliament for legislators and courts for judges. Bentham argued the utility of publicity in enhancing accuracy, public education, and judicial discipline. Moving forward in time, I examine various contemporary techniques in several jurisdictions that shift the processes of adjudication toward privatization. Included are the devolving adjudication to less-public government entities such as administrative agencies; outsourcing to private providers; and reconfiguring the processes of courts to render them more oriented toward settlement. For those appreciative of the role courts play in developing and protecting human rights, these new practices are problematic because adjudication can itself be a site offering opportunities to engage in democratic practices. The odd etiquette entailed in public adjudication under democratic legal regimes imposes obligations on government and disputants to treat each other—before an observant and often times critical public—as equals. Public and private power can be constrained by such performative requirements. When decision making takes place in public, the application of law to fact can engender normative contestation predicated on popular input. This claim of public adjudication’s democratic potential and utilities is, however, not an argument that the judgments provided and the norms developed will necessarily advance a shared view of the public welfare. Hence, while eager to re-engage Bentham, I offer different claims for publicity and less optimism about its consequences. (shrink)

In 1935, when the U.S. Supreme Court’s new building opened and displayed the phrase “Equal Justice Under Law,” racial segregation was commonplace, as were barriers limiting opportunities for men and women of all colors to participate in economic and political life. The justices on the Court and the lawyers appearing before them reflected those facts; almost all were white men. Today, the Supreme Court’s inscription has become its motto, read as if it always referenced an understanding of equality that has (...) become central to the identity and the legitimacy of courts. The judiciary “looks” somewhat different than it did and, in a sense, has become more “representative” of the range of people appearing in courts. Given the role that courts had played in sustaining discrimination, the impression that courts ought to welcome everyone is a major achievement. Yet, to assess the impact of new judicial demographics requires analysis of other major alterations in U.S. courts—the influx of diverse litigants newly entitled to pursue legal claims; the economic barriers facing many claimants; the emergence of judiciaries as agency-like promoters of agendas; and the displacement of public adjudication through the privatization of dispute resolution. Studies of women as judges focus mostly on their rulings, but probing the “difference that difference makes” requires looking beyond judicial opinions. Courts in the United States have developed structural capacities to propose rules and legislation, create education programs, commission research and task forces, and lobby for resources. When women of all colors and men of color became lawyers and judges, they created affinity organizations and pressed courts to research court-based bias and to revise rules of ethics, doctrine, and practice. Those changes are part of the impact of diversification within the legal profession, as is the backlash against affirmative efforts to reform practices. Another difference of the last decades is that new rights have brought into court many claimants with limited means. Participatory participation remains elusive, while the “justice gap” is pervasive. Worse yet, in some jurisdictions, courts have served as “revenue centers,” using court-imposed assessments as income. Failure to pay “legal financial obligations” can result in suspension of driver’s licenses, the loss of voting rights, and other sanctions levied disproportionately on people who are poor and of color. Instead of being seen as fonts of fairness, courts are coming to be identified as sites of inequality. In addition, many courts have embraced alternative forms of dispute resolution that make both processes and outcomes less visible to the public. Through doctrine and rules, U.S. courts have shifted their own practices as well as enforced mandates imposed on consumers and employers that push them out of court and out of class or joint actions. In sum, the new faces on the bench ought not to obscure that the project of representation, inclusion, and equality is far from complete. The vivid inequalities in courts are problems for courts because such disparities undermine their ability to be places of justice. (shrink)