Civil Justice, Privatization and Democracy

This project is about the privatization of civil justice and its potential ramifications for democracy. Privatization is rapidly and increasingly occurring at all levels of the public justice system, including courts, tribunals and state sanctioned private dispute resolution regimes. This reform movement is driven by a wide-spread ethos of efficiency-based civil justice reform. There are many sound reasons for these privatization trends, including reduced costs, increased speed and efficiency, privacy, enhanced participation and autonomy through increased party choice within and control over dispute resolution processes, and improved access to the tools of justice. However, these trends also have a number of costs in the form of negative impacts on the development of the common law, potential procedural unfairness, power imbalances between disputants and a potential negative impact on systems of democratic governance. Civil society is publicly regulated largely through legislation and adjudication. To the extent that we are actively privatizing how we do adjudication, we are in effect actively privatizing a large part of the way we govern ourselves in modern democracies.

By raising these issues, this project has three main goals. First, it seeks to bear witness to the modern and wide-ranging privatization initiatives that are currently defining the way we think about and resolve almost all non-criminal disputes. Given its importance, we need to publicize, politicize and ultimately temper – although not eliminate – this move to the private. Second, this project seeks to articulate the benefits and costs of these privatizing initiatives, particularly including their potential negative impacts on the way we publicly regulate ourselves in modern democracies. Third, this project makes recommendations for future thinking about, and approaches to, civil justice practice and reform. In so doing, it calls on academics, jurists, civil justice reformers, elected representatives, practitioners and citizens to engage in a robust debate about all aspects of the privatization of civil justice, the future of which will have a fundamental impact on our public processes of democracy.