Marc Galanter & John Lande, Private Courts and Public Authority, in Studies in Law, Politics, and Society 393 (Austin Sarat ed., 1992).
Abstract
This view of civil litigation from the Wall Street Journal (cf. Savas 1987, p. 21) cannot survive the most cursory examination. The news pages of the same day's Wall Street Journal reported the Chapter 11 filing of the A. H. Robins Corporation, driven to invoke the protection of bankruptcy by a mounting tide of damage claims from users of its Dalkon Shield intrauterine device. But the cavalier dismissal of any public function for civil courts raises in stark form the question of what these functions are and how they can be filled. We propose to address this question indirectly by examining the publkaspects of "private" courts. This paper analyzes how various tribunals may be considered to be private courts, why it mayor may not be desirable to have them, and in what ways they should be private (or public). We suggest that the many sorts of private courts vary in their "privateness" along numerous dimensions that are not necessarily correlated, and that virtually all "private courts" contain significant public elements. (Conversely, American "public" courts contain important private aspects.) Given this perspective, the policy issue is not whether cases should be processed by "public" courts or "private" courts, but rather what dimensions of courts should be public or private. This analysis of courts according to various dimensions of pUblicness and privateness suggests the need for research and regulation focused on particular dimensions of specific tribunals.
