Justice in a 21st Century Flattened World

“The World Is Flat” announced columnist and author Thomas L. Friedman in his book of the same name described on its cover as “A Brief History of the Twenty-First Century”.

In that book, first published in 2005, Tom Friedman describes “The Ten Forces That Flattened the World” many of which have been around for years. However he argues that it was not until around the year 2000 that we entered a “whole new era: Globalization 3.0” which Friedman describes as “shrinking the world from a size small to a size tiny and flattening the playing field at the same time”. More importantly Friedman points out the thing that gives Globalization 3.0 its “unique character” is the “newfound power of individuals to collaborate and compete globally” which means “individuals must, and can, now ask, where do I fit into the global competition and opportunities of the day, and how can I, on my own, collaborate with others globally?”

This shrinking and flattening of the world and the newfound power of individuals to collaborate and compete globally presents challenges to and portends profound changes to the structure and operations federal and state judiciaries as well as the field and profession of dispute resolution. Indeed as a result The Rule of Law or the absence thereof is more visible and the effect of its presence and absence more universally and comprehensively felt than ever before.

This increased power of individuals has produced several societal trends which the noted sociologist Theodore Caplow first noticed in the 1990’s in his book, American Social Trends. These trends have accelerated in the twenty-first century. The most discussed and arguably the most dramatic is the “movement of married women into the labor force.” This trend was heavily reported this past week in conjunction with the release of “The Shriver Report” entitled “A Woman’s Nation Changes Everything” jointly produced and edited by The Center for American Progress, a think tank headed by John Podesta, a former Clinton White House Chief of Staff and Obama Transition Team Chair and Maria Shriver, a national media correspondent and the First Lady of California. That report notes that married women are now the breadwinners in a near majority of American families even though they still do not earn equal pay for equal work. This trend is contemporaneous with other trends including the legitimization of unmarried consensual unions of both opposite and same sex couples, a sharp decline in fertility, the reduction of paternal responsibilities, in some ways and the increase and diversification of those responsibilities in others as well as a massive shift from blue-collar to white collar-employment.

Caplow characterizes these changes as “transformative and goes on to describe the events that led up to them as “a revolution against society rather than against the state.” Caplow observes that “every form of personal authority by which social control has in the past been exercised has been weakened and replaced at least in part by a form of bureaucratic regulation” in the Twenty-First Century.

This observation is demonstrably true. Among the relationships clearly altered for better or worse depending on your perspective are those between managers and workers, men and women, parents and children, teachers and students, clergy and parishioners as well as politicians and electorates. Even the most authoritarian relationships that can still be found amongst which Caplow includes physicians and patients and judges and litigants are increasingly regulated by third parties and constrained by bureaucratic regulations. We see this in the enhanced regulatory and disciplinary authorities and regimens regulating lawyers and judges as well as the increased “access to Justice” accorded to our citizens many of whom can now be seen and heard representing themselves in and out of our courthouses.

What this means says 72 year old scholar Theodore Caplow is that institutions with reduced authority must be managed more skillfully than those which still have stronger internal authority which is accepted by its stakeholders. That means the judicial branch of government can no longer efficiently manage its limited resources and those of its supporting agencies and staffs by reacting to societal trends and developments rather than planning for them. It means that the leaders of the justice system must accept the need for the same transformation and organizational change that is well advanced in many other public and private institutions all around us. This includes specialization and multi-disciplinary collaboration.

The managers and judges of the judicial branch of government should therefore institutionalize the means to continuously recognize and research present and future societal trends, and then plan for their impact on the courts. In doing so judges and lawyers should recognize and acknowledge that we do not have exclusive right, title and interest to the expertise necessary to fairly and efficiently resolve all of our fellow citizens’ disputes and that consequently justice is not to be found exclusively in our state and federal courtrooms or obtained after costly and time consuming litigation.

The access that most of our citizens want is to justice regardless of where they have to go to get it. We should begin to plan for them to have access to justice quicker and easier than they do today and we should not in the future restrict its availability only to courtrooms or even courthouses. As we progress through the twenty-first century those who will be leading the judicial branch of government must recognize that its mission to serve justice by providing a comprehensive and diverse public dispute resolution service capable of resolving disputes fairly and efficiently and in a manner that enables the resolution of the dispute to be final and enforceable within a reasonable time. This is more than a trial service. It is a conflict resolution service.

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