Academic

Lande on Evaluating Dispute Resolutions Processes & Judges

By Lawrence Solum

John Lande (University of Missouri School of Law) has posted Judging Judges and Dispute Resolution Processes (Nevada Law Review, Vol. 7, 2007) on SSRN. Here is the abstract:

This article critiques Professor Chris Guthrie's lead symposium article entitled, "Misjudging." Guthrie's article makes two major arguments. The first is a descriptive, empirical argument that judges are prone to error because of three types of "blinders" and that people underestimate the amount of such judicial error. The second argument is prescriptive, recommending that, because of these judicial blinders, disputants should consider using non-judicial dispute resolution processes generally, and particularly facilitative mediation and arbitration.

This article critiques both arguments. It notes that, although Guthrie presents evidence that judges do make the kinds of errors that he describes, his article does not address the critical question of whether judges make these errors more than others, and it presents no evidence that people generally underestimate the amount of error that judges make. This article cites evidence suggesting that judges do not generally make decision-making errors more often than others do and it questions whether people generally underestimate the amount of judicial error.

This article also argues that most lawyers (and many disputants) are probably well aware of judges' fallibility and already take that into account in deciding whether to seek court adjudication. As reflected by generally low trial rates, most litigants go to trial as a last resort - when other processes seem even more problematic than trial. Although disputants may wisely choose facilitative mediation or arbitration in some cases, they may reasonably believe that evaluative mediation and trial are suitable in others. This article concludes that Guthrie's empirical data do not support general recommendations about choice of dispute resolution processes, which disputants should base on a wide range of factors such as their values, interests, resources, relationships, and constraints.

I couldn't find an online version of Guthrie's original paper, if anyone has one, I'll post it.

Full post as published by Legal Theory Blog on February 18, 2008 (boomark / email).