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March 10, 2012

Stanford Law's Amalia Kessler: Adhesion, Arbitration and the American bias against ADR.

Full Ajudication: Expensive but American. For an unusually good explanation of why Americans historically have resisted arbitration and other ADR, see the op-ed piece by Stanford law professor Amalia Kessler entitled "Stuck in Arbitration", which appeared earlier this week in the New York Times. Excerpt:

The standard historical account begins with the Federal Arbitration Act [1925], but the practice of extrajudicial dispute resolution has a much longer history.

Mid-19th century Americans across several territories and states — including Florida, California and New York — engaged in a nearly forgotten debate concerning “conciliation courts.”

Widely adopted throughout Europe and its colonies during the late 18th and early 19th centuries, these were institutions composed of respected community leaders seeking to persuade disputants to accept an equitable compromise in secret, lawyer-free proceedings and without regard to the formal rule of law.

Despite the efforts of American proponents of these courts, proposals to establish them went nowhere.

In the view of their opponents (including businessmen and lawyers), such courts were incompatible with the American commitment to freedom. Adjudication, they successfully insisted, was a vital bulwark of liberty. It enabled individuals to publicly assert their rights as equal citizens under the law.

As one delegate to the 1846 New York State Constitutional Convention argued, “In a free country like this” — one “where every man was the equal of his fellow-man” — “there would always be litigation.”

Posted by JD Hull at March 10, 2012 12:28 PM


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