NCJ Number
129600
Journal
Harvard Civil Rights-Civil Liberties Law Review Volume: 25 Issue: 2 Dated: (Summer 1990) Pages: 341-429
Date Published
1990
Length
89 pages
Annotation
In some respects, efficiency reforms to civil procedures collide with the separation of powers ideal, undermine values of empowerment and participation in the development of public values, and threaten court access for minorities.
Abstract
Developments in procedural theory are used to recast and expand traditional values analysis to acknowledge group relations characterized by dominance and subordinance, to challenge the myth of the inherent neutrality and fairness of procedures, to recognize the empowerment potential of rights litigation, and to acknowledge the function of procedures in the articulation of public values. The reformulated values framework then identifies values related to court access, especially for minorities asserting marginal rights claims. The author suggests that these values are integral to a humane, functioning legal system in a society committed to democratic principles. Recent civil procedure reforms threaten to undermine these values in two significant respects. First, reforms foster efficiency in part by discouraging court access for plaintiffs asserting rights claims at the margin of prevailing law. Second, reforms accept and encourage the privatization of dispute resolution as a means of reducing litigation costs. Minorities challenging mainstream social understandings that ostensibly justify harsh legal arrangements pay an inordinately high price for the legal system's efficiency benefits. 388 footnotes