Thursday, March 29, 2012 12:30 PM   to   Thursday, March 29, 2012 2:00 PM

Hillcrest Classroom of the Underwood Law Library
6550 Hillcrest Road, Dallas, TX

This lecture draws on the book, Representing Justice: Invention, Controversy and Rights in City-States and Democratic Courtrooms, by Professors Judith Resnik and Dennis Curtis and published by Yale Press in 2011. The relationship between courts and democracy is at the center of this book, which traces how, under democracy, “rites” of public performance of judgment turned into “rights,” imposing requirements that governments provide “open and public” hearings and respect the independence of judges. Courts developed alongside the press and the post as mechanisms for the dissemination of knowledge about government.   Not only did “all persons” gain rights to equal treatment and dignity, they were also recognized as entitled to occupy all the roles—litigant, witness, juror, judge—in courts.
 
Democracy has not only changed courts but also challenges them profoundly. Most governments do not adequately fund their justice systems to make good on promises of equal justice before the law. Contemporary responses depend on various modes of privatization, including reconfiguration of court-based processes to manage and settle disputes outside the public purview, devolution of fact-finding to agencies and tribunals where judges are less visible and independent and the processes less public, and diversion of decision making to private arbitration and mediation.
 
The movement away from public adjudication is a problem for democracies because adjudication has important contributions to make to democracy. Adjudication is itself a democratic process, which reconfigures power as it obliges disputants and judges to treat each other as equals, to provide information to each other, and to offer public justifications for decisions, based on the interaction of fact and norm.
 
In many respects, courts as we know them today are recent inventions. The possibility offered—of what Nancy Fraser has called “participatory parity”—is an outgrowth of social movements pressing governments to treat all persons with dignity and accord them equal status under law.  Yet while monumental in ambition and often in physical girth, the durability of courts as active sites of public exchange before independent judgments ought not be taken for granted.  Like the other venerable institutions of the eighteenth century—the postal service and the press—courts face serious challenges in the twenty-first.