, Clément Camion2, Karine Bates3, Siena Anstis4, Catherine Piché5, Mariko Khan6 and Emily Grant7
Faculty of Law, McGill University, Montréal, Québec, Canada
Montréal, Québec, Canada
Département d’anthropologie, Université de Montréal, Montréal, Québec, Canada
Toronto, Ontario, Canada
Faculté de droit, Université de Montréal, Montréal, Québec, Canada
Sheahan and Partners, Westmount, Québec, Canada
Montréal, Québec, Canada
From Public Adjudication to Private Participatory Justice: Current Trends in Procedural Justice
Another important theme to consider in civil justice is the convergence of a number of phenomena identified in civil procedure: the move toward alternative dispute resolution (ADR), the preference for settlement, the shifting of the role of the judge toward managerial judging, and the shifting of the role of lawyers toward conflict resolution advocacy. These phenomena all point to a discernible move away from justice by adjudication toward “participatory” justice,1 as well as a move away from public justice toward more private forms of justice. By private forms of justice , we mean both dispute resolution mechanisms that intervene only between parties without binding effect on third parties, as well as the rise of legal norms produced by private entities, which opposes the historically constructed idea that the State has a monopoly over legal norms and that legal norms are those which have been produced in a public forum. We offer an overview of some of the arguments put forward to justify and challenge these changes in dispute resolution processes, the role of judicial actors, and that of the State in the administration of justice. We also try to identify the values that may underlie these shifts.
The Vanishing Trial
The “vanishing trial ” phenomenon was described by Marc Galanter , in a detailed empirical study of American federal and state courts , as a marked decrease over the past 40 years in the percentage as well as in the absolute number of civil disputes that are resolved by trial . Moreover, trials have become more complex, more protracted, and therefore more expensive. While one notable explanation of this phenomenon is that an increasing number of disputes are diverted from the conventional trial-centred adjudication process into ADR or non-trial adjudication mechanisms ,2 an extensive body of literature explores the nature, causes, and consequences of the vanishing trial phenomenon. We have selected a number of key arguments to review.3
Existing literature has drawn attention to the fact that the reliability of the “underlying data in which the ‘vanishing trial’ appears” may be questionable . Gillian Hadfield suggests that settlement rates have in fact decreased while non-trial adjudication rates have increased; the fact that a trial has started does not entail that it will lead to adjudication. Hadfield seeks to determine whether the vanishing trial phenomenon “reflects an increase in private settlements (as many assume) or an increase in public non-trial adjudication” and “whether we are witnessing a fundamental shift out of public adjudication into private settlements or merely a shift in how and when judges decide cases.” The causal link between settlements and other forms of private dispute resolution, on the one hand, and the vanishing trial phenomenon, on the other hand, is tenuous at best, namely because of the error variables in the available data. For example, a dispute may also end as a result of pretrial motions to dismiss or motions for summary judgment. Moreover, cases may be terminated as a result of default or abandonment or for any number of other reasons (such as transfer to another jurisdiction) that do not involve a settlement of any sort.4
Authors have also asked whether the vanishing trial phenomenon is “a uniquely American phenomenon” or whether it reflects “a broader trend in the common-law world.” According to Herbert Kritzer , there is a correlation between vanishing trials and increasing resort to ADR mechanisms across common law jurisdictions, but the causal and explanatory links remain unclear, notably because trial rates had already begun to decline before the move toward ADR mechanisms. The move toward alternative dispute resolution is a common pattern in England and Wales , the United States, and in the Canadian province of Ontario .5
In England and Wales, Kritzer notes that court and civil justice reforms are possible factors influencing the patterns in trial rates, although “even before these changes were adopted, a decline in the number of trials had begun, and well before the changes, the drop in the percentage of cases going to trial had started.” In other words, there is a correlation between the decline in trial numbers and the rise of ADR mechanisms, but the reasons behind this remain unclear. The vanishing trial phenomenon has also been observed in Ontario, but available data may reflect “a change in the pattern of trials” rather than merely “a decline in caseload.” One major difficulty for analysis is therefore the lack of comparative empirical data across Canadian provinces.6
Dingwall and Cloatre similarly observe that the decline in trial rates in England and Wales may have occurred as a consequence “of deliberate policy decisions by government and senior judges, which have changed the options and incentives for other stakeholders.” They point out that, although a similar phenomenon is observable in both the United States and in England and Wales, “we should be wary of assuming that the causation is identical.” They argue that the decline in trial rates may be attributed to “more efficient and effective case management” practices in the wake of the Woolf Report and that the decline may be perceived as “an indicator of a system that is performing well because disputes are being resolved elsewhere at less cost and with readier access.” This theory, however compelling, does not account for the decline in the absolute number of claims being filed. In fact, the introduction of pre-action protocols forces parties to prepare their cases before a claim is filed and therefore serves as an incentive for parties to settle, or resort to ADR, without ever filing a claim, in order to avoid case management and the attendant loss of control over the proceedings.7
Research has also suggested that the move toward ADR may have little to do with the benefits of ADR mechanisms per se and rather reflects the drawbacks of adjudication . Adjudication is often perceived as the default resolution mechanism and as the proper course for dispute resolution. The description of ADR using expressions like “bypass the adjudicatory process” by those who resist the vanishing trial phenomenon, or who oppose the move toward ADR and settlements, indicates a sense that adjudication is the proper course. In their eyes, settlement remains a deviation from that proper course.8 Judith Resnik argues that we turn to ADR because of “a failing faith in adjudicatory procedure” and corresponding “growth in anti-adjudicatory rhetoric.” Resnik finds an outright hostility toward adjudication,9 viewing the vanishing trial phenomenon as boiling down to “a hostility towards procedure used as an obstacle to truth.”10
Overall, empirical data clearly documents the vanishing trial phenomenon, although no satisfactory conclusion as to the dynamics of the phenomenon can be drawn. A number of authors have pointed to various hypotheses regarding the causes of the vanishing trial phenomenon, and this review only reveals that explaining the vanishing trial phenomenon requires more research. The literature points to multifactorial correlations between the vanishing trial phenomenon and a move toward ADR mechanisms, a move toward settlement, and court and civil justice reforms. But the lack of reliable empirical data remains a major obstacle to further ascertaining the impact of each of these elements.
A number of further questions need to be asked in order to carry out a more helpful analysis not only of the causes of this phenomenon but also of its consequences. Is the “vanishing trial phenomenon” even an accurate label? Are we making the mistake of grouping together different realities that should be accounted for distinctly? What are the normative consequences of a vanishing trial phenomenon? Considering the existence of judicially supervised ADR mechanisms, as well as motions to dismiss and summary judgments, does the vanishing trial phenomenon actually represent a shift away from public adjudication to private dispute resolution, or is it rather a shift toward non-trial public adjudication?
The Move Toward ADR
Defining Alternative Dispute Resolution
Hazel Genn defines ADR as “an umbrella term which is generally applied to a range of techniques for resolving disputes other than by means of traditional court adjudication.”11 The breadth of the different processes commonly grouped under the category of ADR is far too wide12 for each of them to be covered in detail, so this review will focus on the essentials. The ADR processes that are most discussed in the literature are negotiation, mediation, and arbitration.13 These are not, however, the only processes that can be considered ADR under Genn’s definition. Indeed, other processes such as “community justice centers, rent-a-judge programs, judicial settlement conferences, and small claims court” can also be included.14
A distinction can be made between court-annexed or court-connected processes, and free-standing or private processes. As will be explained below, these two categories diverge essentially in their relationship to the State-centred public justice system. There are also non-trial court adjudication processes, such as dispute resolution by disposition of legal motions, mini-trials or summary jury trials,15 summary judgment or administrative adjudication,16 which can also fall under Genn’s definition.
Arguments in Favour of ADR
Literature in favour of ADR emphasizes its ability to offer solutions that go beyond the limitations of traditional, court-based adjudication . Illustrating the multi-door approach to civil justice, Julie Macfarlane argues, “[I]t is time to look beyond adjudication as a single model for dispute resolution and to consider instead a spectrum of dispute resolution alternatives.”17 Similarly, Carrie Menkel-Meadow writes, “Much of the current interest in alternative dispute resolution is an attempt to modify the harshness of the adversarial process and expand the kinds of solutions available, in order to respond better to the varied needs of the parties.”18 In this sense, ADR mechanisms are perceived as an “alternative” to, but also as a criticism of, adversarial adjudication .19
Alternative dispute resolution is viewed as having the potential to promote values of efficiency , substantive justice, and party consensus. Menkel-Meadow argues that a fundamental aspect of the debate about “nonadjudicatory dispute resolution concerns the values it is intended to promote.” A first value to consider is the “efficient-justice claim”. Non-adjudicatory dispute resolution processes, such as ADR, allow a speedier and less expensive resolution of the dispute than would be possible through adjudication, which William Schwarzer qualifies as “the most costly and inefficient way of resolving disputes and the least productive allocation of the judge’s time.”20 A second value to keep in mind is the “substantive justice claim ”. The question is whether the dispute resolution process produces “a just result for the parties and/or the best result for the future guidance of society.” Each dispute resolution process must be analyzed independently to determine whether both these objectives are met. Finally, a third value is the “substantive process claim”. The idea is that consensus-building processes based on the consent of the parties are superior to the coercive process of adjudication. They produce “win-win results” and increase “disputant satisfaction with the process and the result.”21 It becomes apparent that all these values assume “that the process chosen affects the outcome and the outcome desired affects the choice of process.”22
Arguments Against ADR
A drawback of ADR emphasized by the literature is its private nature. According to Genn , “A critical feature of all forms of ADR is that they are dispute resolution processes conducted in private . Both the process and the outcome of the procedure are private and generally confidential to the parties.”23 Some authors, such as Resnik , argue that if “through access, the public is educated, the judges and litigants and lawyers are supervised, and knowledge of legal requirements is disseminated,” the confidential nature of ADR is a major drawback in terms of fairness, due process guarantees, and the rule of law.24 Hadfield further remarks that those opposed to settlements argue that they lead to “the loss of public opportunities to create law and express public values.”25
Those who are critical of the movement toward ADR, settlement, and other consensus-building or participatory dispute resolution processes view these processes as a challenge to the monopoly of the State over dispute resolution and therefore as a shift away from public justice and toward private justice. Indeed, for Trevor Farrow , the shift toward dispute resolution outside the public forum of State courts for efficiency reasons constitutes a privatization of justice and a risk to the system of democratic governance .26 Historically , however, the distinction between private and public justice, and the emergence of the State as the sole authority capable of rendering justice, can be traced back to the erosion of the feudal system and the emergence of the (often centralized) nation-state. Exercising a monopoly over the administration of justice may have been a function critical to legitimizing the power of absolute monarchs; however, this function is historically circumscribed. As such, it should perhaps now be questioned whether the State ever had or should ever have had a monopoly over dispute resolution, and why such a monopoly is important.
Another concern present in the literature is whether ADR perpetuates discrimination . Resnik asks whether gender operates differently on adjudication and on ADR. “My own sense,” she says, “is that these processes share more than they diverge, and the gender bias problem will affect them similarly.”27 Given the risks of gender bias and discrimination in ADR processes, Resnik argues that efforts should be invested in the creation of a distinctly feminist mode of adjudication before giving up on adjudication altogether and resorting to ADR processes.28 Many authors argue that imbalances in bargaining power may disproportionately disadvantage women in informal processes, forcing them “to accept a resolution that gives [them] far less than [they] would be entitled to in a formal adjudication.”29 As such, Elizabeth Schneider argues that “[t]here are considerable dangers in positing the formal adjudication system as ‘male,’ in contrast with, for example, alternative dispute resolution as ‘female’.”30
More generally, the assumption is all too common that ADR can usefully be analyzed independently from the fall-back adjudication system that will dictate results where the parties fail to settle. ADR is generally presented as a process that can replace adjudication. It cannot.31
Judicial Alternatives to Adjudication
Another important concept related to ADR is “judicial dispute resolution”, or JDR. There is a significant yet unclear overlap between the definitions of ADR and JDR. Macfarlane and Manwaring classify mandatory settlement conferences as JDR processes,32 while Hill classifies them as ADR processes.33 In fact, JDR refers to judge-led ADR processes or, in other words, “ADR in the courts.”34 Landerkin and Pirie therefore define JDR as “the non-adjudicative procedures used by judges to assist settlements within our public justice system. JDR would include judges acting as third party intervenors, that is, mediators, and participating in case management, settlement or pre-trial conferences, mini-trials and the like.”35 In this sense, JDR represents a move away from considering ADR as an “alternative” and toward considering it to be an integral component of the judicial system and the judicial function.
The emergence of JDR raises the thorny question of the “modern judicial function ”,36 an issue we began to explore in Chap. 3. Should judges be passive or active? Should their role be to manage or to adjudicate? Indeed, as judges become involved in JDR processes, “the line between adjudication and the other activities blurs.”37 In Resnik ’s opinion, ADR is a criticism of “the weakness of adjudication, its failures and limitations,” and therefore ADR and adjudication are meant to remain mutually exclusive. Proponents of ADR should be wary of “its institutionalization and its transformation into the very adversarial processes that they had hoped to avoid.”38
Lankerkin and Pirie raise a number of intriguing questions with regard to JDR, which can serve as a basis for further research on the subject. For example, on the issue of the judge’s role, they ask whether judges should be carrying out JDR on fundamental judicial policy grounds and whether judges have the skills and jurisdiction to engage in JDR.39 In addition to these questions, and others raised by these authors, one should also consider whether the movement toward JDR is a resurgence of equity judging and, if not, what parallels can and cannot be drawn between JDR and equity judging. More generally, a finer and more rigorous categorization of dispute resolution methods should lead to a better understanding of what is at stake in policy choices concerning JDR.40
The movement toward ADR suggests a general trend toward the contractualization and dejudicialization of civil procedure. Moreover, the judicial promotion of ADR and settlement, as well as the recent movement toward JDR, indicates that the State itself is involved in some hybridization of justice. The impact of this process on access to justice is an issue that requires further research.
We have dedicated a specific part of this chapter to settlements , given the abundance of literature dealing with this topic and its suggested link to the vanishing trial phenomenon.
Is Settlement Preferable to Adjudication as a Dispute Resolution Process?
In our analysis of the vanishing trial phenomenon, above, we pointed out the rise of an anti-adjudicatory rhetoric. In considering existing arguments in favour and against settlement, it is again the value of adjudication in terms of public, as well as private, justice that is at the heart of the debate.
Marc Galanter and Mia Cahill identify the main arguments in favour of settlement as a dispute resolution process: party preference (goal sought, satisfaction and needs of the parties), cost reduction (parties savings, court efficiency), superior outcomes (golden mean to achieve compromise, superior knowledge of the facts and the parties’ preferences, normative richness and openness, creative and flexible solutions or remedies, more compliance, personal transformation), and superior general effects (deterrence, moral education, legal mobilization and demobilization, precedents and patterning).41 In summary:
The first cluster, party preference, offers a series of measures which are for the most part taken to be indicators of a desire to settle the case. The second and third clusters, cost reduction and superior outcome, are the two most frequent ways of describing the quality of settlements. Cost-reduction arguments claim that settlement accomplishes the same goal as adjudication but sooner, cheaper, and with less aggravation. Superior-outcome arguments claim that settlement leads to richer processes and/or more felicitous outcomes. Cost reduction arguments view settlements as (happily) truncated adjudications; superior-outcome arguments see adjudications as failed settlements. For the former, settlement is an answer to high transaction costs; for the latter it is an answer to the inherent limitations of adjudication. Finally, there is the superior general effects cluster, rarely directly addressed in the literature, which focuses on the influence of settlements on actors who are not parties to the dispute at hand.42
Supporting the party-preference argument, Menkel-Meadow writes: “the quality of dispute resolution is improved when models other than the formal adjudication model are used. Solutions to disputes can be tailored to the parties’ polycentric needs and can achieve greater party satisfaction and enforcement reliability because they are not binary, win/lose results.”43
Arguing against settlement , on a more systemic level, Owen Fiss advocates the treatment of settlement “as a highly problematic technique for streamlining dockets” rather than as a valuable alternative to adjudication.44 According to Fiss, proponents and opponents of settlement have different understandings of the purpose of the civil law suit and its place in society. Adjudication should be understood more broadly than just as a service provided by the state to facilitate the resolution of private disputes; it should be understood as a public good , because it is a mechanism for interpreting and giving concrete meaning to legally and constitutionally authoritative public values. Courts can no longer fulfill these functions when disputes are settled without adjudication. Hence, settlement undermines the public aspects of achieving justice . Further, settlement proves problematic in terms of achieving private justice where there is a power imbalance between the parties. For example, whether because of a lack of sufficient (public or private) resources to see the dispute through to adjudication or because of a need to obtain compensation more quickly than through adjudication, a party may consent to settle for less than what that party could obtain through adjudication.45
Some, however, perceive such arguments as merely speculative and unsupported by empirical data . As Menkel-Meadow suggests, the question should rather be “under what circumstances [is] adjudication . . . more appropriate than settlement, or vice-versa”?46 This is indeed a better approach to the issue.
Is Judicial Involvement in Settlement and the Promotion of Settlement Appropriate?
Over the years, the active promotion of settlement has become “a major component of the judicial role .”47 Canadian judges have been involved in the judicial promotion of settlement, though in a more modest and less activist way than their American counterparts . More recently, however, judicial involvement has increased in Canada due, for example, to rule changes that have introduced mandatory settlement conferences.48
Any discussion of judicial involvement in settlement processes necessarily raises the question of the proper role for judges in justice systems.49 In the next part of this chapter, we will focus on managerial judging. For a discussion of the issue in the context of legal traditions, we refer the reader to Chap. 3, on inquisitorial and adversarial traditions. For now, we present a selection of North American perspectives on judicial involvement in settlement and in its promotion.
One specific issue is that of the appropriateness of mandatory settlement conferences , particularly in terms of their ability to promote efficient judicial procedure. Menkel-Meadow observes that “[p]roponents of the settlement conference point to its ability to dispose of cases efficiently, decreasing the delay of case resolution and increasing the likelihood of achieving settlements.” She suggests, however, that settlement conferences should not be presided by “the trial judge, especially in bench trials” and should be left to a different judicial actor such as a “settlement officer”, although this might have drawbacks in terms of efficiency and effectiveness.50
Another issue relates to the appropriateness of judicial settlement in light of empirical data suggesting that judicial intervention does not increase the number of settlements reached. Analyzing empirical data in light of the idea that settlements, whether judicial or not, happen “in the shadow” of the official court process, Galanter suggests that most cases would settle regardless of judicial intervention, with the consequence that judicial resources spent on case management and mandatory settlement conferences are wasted.51 Others argue, however, that even if judicial intervention does not produce more settlements, it produces “better, and perhaps earlier, settlements.”52 Although comparing the quality of judicial and non-judicial settlements might prove interesting, it would not be useful in determining whether judicial promotion of settlement is an appropriate use of judicial resources; if settlement is accepted as a sound mechanism in principle, judicial institutions’ leadership may well be precisely what is needed to promote it.
Judicial promotion of settlement has indeed been institutionalized over the years.53 Issues surrounding the various techniques used by judges to promote settlement, however—including setting a firm trial date with no possibility of continuance, acting as mediator at mandatory or voluntary settlement conferences, and pretrial conferences—are another topic altogether. It is sufficient for our purposes to state that techniques improving the quality of settlements in terms of substance and process are preferable to those that merely seek to improve efficiency.54
Resnik coined the expression “managerial judges ” in her seminal work on the subject. “Managerial judging ” refers to judges who increasingly exercise managerial functions in addition to or instead of their traditional adjudicative functions. They “shape pleadings, schedule and limit disclosure and discovery, require alternative dispute resolution . . ., encourage settlement, and otherwise sculpt the lawsuit.”55
The literature can be divided into proponents 56 and opponents57 of managerial judging. Normative arguments regarding the changing role of the judge with respect to managerial judging are reviewed here in turn.
On the one hand, some consider managerial judging to be a remedy to the shortcomings of existing methods of dispute resolution. Schwarzer observes that civil litigation has become more and more protracted, complex, voluminous, and expensive: this “litigation explosion has created an unprecedented crisis in the administration of justice.”58 Proponents of managerial judging therefore argue that it improves efficiency by decreasing delays, producing more dispositions, and reducing litigation costs.59 More specifically, managerial judging can reduce the costs associated with “pretrial activity and proceedings,” such as discovery and motions, by controlling their scope.60 Moreover, managerial judging can improve efficiency by promoting settlements and the early resolution of disputes. As Wayne Brazil further states, “[T]he problems it aims to solve are real, immediate, large, and have ominous implications. That means we must be prepared to take some risks and tolerate some imperfections when we fashion remedies.”61
The search for efficiency in the face of a growing crisis due to scarce judicial resources seems to be the primary value expounded by the proponents of managerial judging—the most ardent of whom, it must be noted, are judges themselves . Proponents often appear to perceive a managerial role for judges as a necessary evil, or at least as a second-best solution, to remedy the ills of the adversarial adjudicatory system, as it exists, until comprehensive reform of the system is carried out .
Proponents also argue that managerial judging produces a more just determination of disputes. Schwarzer’s argument, for example, is that justice is not possible where there is inefficiency. Therefore we come back full circle to efficiency as the core value espoused by proponents of managerial judging.62 Balancing potential arbitrariness in managerial judging with efficiency, E. Donald Elliott argues that “the benefits of managerial judging in enhancing substantive justice can exceed the costs in terms of procedural justice , and therefore [he] favor[s] the judicious use of managerial judging despite the potential for arbitrariness which it admittedly entails.” More specifically, Elliott argues that managerial judging can improve substantive justice in the case of settlements if judges are “capable of detecting circumstances in which the existence of significant process costs introduces distortions into settlements” and are “capable of imposing offsetting, countervailing costs which cause actual settlements to approach more closely the ideal settlements that would have been reached in the absence of significant process costs.” For example, process costs, which are reduced here to transaction costs, can take the form of costs incurred due to lawyers who do not act in the best interests of their clients, and of the public, by either over- or under-preparing.63
On the other hand, there are those who oppose managerial judging or resist further developments toward managerial judging without additional safeguards being put in place to guarantee that due process requirements are not jeopardized.64 For example, Elliott concedes that managerial judging is problematic in terms of procedural justice. In fact, managerial judging has the potential for arbitrariness because of its ad hoc character and the fact that “managerial decisions must be made by judges at a stage when they have only a cursory understanding of the merits of cases.”65 Moreover, Elliott argues that
at least when judges make legal decisions, the parties have an opportunity to marshal arguments based on an established body of principles, judges are required to state reasons to justify their decisions, and appellate review is available. None of these safeguards is available when judges make managerial decisions.
It seems beyond serious debate, then, that discretionary managerial decisions may influence the outcome of litigation in ways that are arbitrary because judges act without the procedural safeguards that accompany decisions on the merits.66
Yet, it is unclear whether this potential arbitrariness stems from a lack of formal safeguards in the abstract or from material consequences specific to the case. Elliott specifies that there is a need to distinguish “between the loss of procedural fairness that may accompany the misuse of particular techniques which are incidental to managerial judging, on the one hand, from the loss (if any) of procedural fairness which is inherent in managerial judging by its very nature.”67
Thornburg summarizes the various arguments against managerial judging that have been put forward in the literature:
Academics questioned pretrial managerial judging both empirically and normatively. The normative critique is the focus of this article. Resnik and others argued that managerial judging not only lacks a basis in rules but also is not even guided by standards; that it is ad hoc and thus varies from case to case; that it is often done out of the public view and results in sealed private settlements, making it doubly nontransparent; that it involves judges more directly in interactions with the parties and reveals party strategy in ways that threaten judicial impartiality; and that a combination of a deferential standard of review, the harmless error rule, and the final judgment rule make it effectively unreviewable. Worse, managerial decisions have the ability to affect the outcome of litigation, yet vary depending on the identity and attitudes of the individual judge.68
Critics of judicial management in the pretrial context have charged that while managerial judging may (or may not) result in a saving of judicial time, it raises substantial concerns: (1) it involves judges so intimately in the parties’ information and strategies that it may compromise the judges’ impartiality; (2) it leads to a loss of transparency as more decisions are made off the record or in chambers; (3) management decisions are not guided by meaningful judicial standards, resulting in inconsistent ad hoc rulings; (4) management decisions can redistribute strategic advantages and disadvantages and even affect case outcomes; and (5) there is often no effective appeal of a trial court’s management decision.69
Abuse of judicial discretion appears as the main concern with managerial judging.70 Resnik , a staunch critic of managerial judging, views it as just another “new form of ‘judicial activism’ ,” because managerial judges have “substantial power but little visibility and few rules to guide them.”71 Furthermore, according to her, there are reasons to oppose “changes initiated by judges themselves in response to work load pressures.”72 She questions the extent to which managerial judging contributes to “efforts to curtail exploitation of the judicial system, to make dispute resolution quick and inexpensive, or to increase the accountability of judges and attorneys” and “whether it is wise to rely on judges to achieve these goals.” 73 Resnik focuses on managerial judging in the pretrial and post-trial stages. However, these arguments may also apply at the trial stage, as observed by Thornburg.74
With respect to concerns about judicial discretion, however, it must be noted that other literature suggests that, because managerial judging still operates in the context of an adversarial system driven by party interests , it should be viewed less in terms of powers granted to judges. Elliott observes that, though “[o]riginally created as a set of techniques to narrow issues for trial, managerial judging has . . . become a set of techniques for inducing settlements.”75 Managerial judging places judges in a position where they may stimulate settlements they consider “to be in the interest of justice.”76 Indeed, Thornburg argues that the active promotion of settlement by managerial judges “exacerbates the ‘vanishing trial’ phenomenon.”77 According to Elliott, managerial judging is therefore only a “stopgap” measure meant to temporarily deal with the excesses of the adversarial system.78 Hence, “we should think about civil procedure less from the perspective of powers granted to judges, and more from the perspective of incentives created for lawyers and clients.”79
A further concern, beyond abuse of discretion, raised by managerial judging is that “subjective and subconscious value judgements” may more easily “creep in[to]” judicial decision-making, thereby undermining the impartiality of the judge.80 Another consequence is that “[a]ny significant effects on trials can have important consequences, since the few cases that actually go to trial form a body of outcomes that shape everything from settlement values to the development of precedent.”81 In this respect, the possibility that managerial judging may skew outcomes is highly problematic. Another consequence of managerial judging is that judicial orders, such as orders determining the scope of admissible evidence, can “cause dramatic shifts in settlement leverage ” between the parties.82 Decisions of this nature, when taken in the context of managerial judging, are not only ad hoc but also based on the ultimate standard of efficiency. The issue of reliability or of relevance is almost secondary.83
Furthermore, as noted earlier in connection with settlements, some argue that “case management may not be cost-effective;”84 judicial resources are effectively wasted on cases that would have settled anyway without judicial intervention. It is also important to note that managerial judging has ceased to be an ad hoc stop-gap85 or tinkering86