Wisconsin Law Review
In recent years, legal scholars have debated the sources of and cures for a "crisis in the courts," that is evidenced by widespread public dissatisfaction with the legal system. Scholars in the law and economics school have focused on analyzing how disputants and policymakers decide which disputes should go to court, arguing that such decisions should be made so as to promote the goal of allocative efficiency. Sociologists of law and legal system reformers have emphasized exploration of alternative forum choices including negotiation, mediation and arbitration. In this Article, Professor Bush integrates the insights of the law and economics scholars, the sociologists of law and the reformers in order to develop jurisdictional principles which can be used to determine the appropriate forum for handling specific categories of disputes. These jurisdictional principles are based on analysis of a wide range of accepted goals of the civil justice system. The author identifies the discrete goals of the civil justice system and the costs engendered by failing to further each goal. He then develops an analytic model for choosing appropriate forums that considers all of these goals and costs. The model matches the costs which a particular dispute would likely engender with the forum most likely to reduce those costs. Applying the model, Professor Bush shows that previous analyses have consistently exaggerated the desirability of handling certain disputes in the courts. Finally, the author concludes that the model suggests the need for the use of public incentives to influence disputants' choice of process.
Robert A. Baruch Bush,
Dispute Resolution Alternatives and the Goals of Civil Justice: Jurisdictional Principles for Process Choice, 1984 Wis. L. Rev. 893
Available at: http://scholarlycommons.law.hofstra.edu/faculty_scholarship/680