Document Type

Article

Publication Date

1998

Abstract

Many scholars of the dispute resolution system perceive a sea change in attitudes toward adjudication that took place in the mid-1970s. Among the events of the time included the Pound Conference, which put the Chief Justice of the United States and the national judicial establishment on record in favor of at least some refinement, if not restriction, on access to courts. In addition, Chief Justice Burger, the driving force behind the Pound Conference, also used his bully pulpit as Chief Justice of the Supreme Court to promote ADR, particularly court-annexed arbitration. The availability of judicial adjuncts such as court-annexed arbitration or the multi-door courthouse can be regarded as increasing disputant access to some form of hearing and decision that would otherwise be delayed or, as a practical matter, eliminated due to the pressure toward settlement that results when disputes must wait in line for full adjudication or even decisions on motions. But at the same time, these adjuncts to adjudication also reduce in the first instance the litigant's “right” to a judicial hearing by imposing interim steps (one must mediate, arbitrate, or have early neutral evaluation before one can go to court) and creating incentives to settle other than mere delay.

Contemporaneous with the Pound Conference and the Chief Justice's initiatives, the Supreme Court was restricting the reach of class actions and exhibiting something of a counter-revolution against the 1966 expansion of Federal Civil Rule 23. Lower courts were erecting increased barriers to access through heightened pleading requirements. The 1980 Amendments to the Civil Rules included a modest effort to control or restrict discovery, with the 1983 Amendments including a substantially beefed up Rule 11. Judicial decisions of the 1970s and 1980s endorsed some restrictions on the civil jury, increased the availability of summary judgment, endorsed certain legal defenses to previously less impeded claims, and dramatically expanded the scope of the Federal Arbitration Act and the enforcibility of arbitration agreements. In addition, certain classes of claims were removed from the federal courts altogether, made subject to prior exhaustion of administrative remedies, or made subject to substantial incentives to pursue administrative remedies rather than litigation

Publication Citation

40 Ariz. L. Rev. 965 (1998).