Year: 2009
Type: article
Abstract: 5 Richard Stewart describes the evolution of administrative law in five stages.First, the United States took from England the common law model in which citizens brought tort actions against regulatory officials to seek judicial review of their actions.With industrialization in the late nineteenth century and the first commissions and regulatory agencies, this yielded to the 'traditional model of administrative law,' in which courts required agencies to use adjudication modeled on courtroom process before ratemaking or other action; the courts then engaged in judicial review of the agency's fact-finding based on the record and its statutory authority.During the New Deal, Congress created agencies with open-ended statutory delegations of discretionary power, raising constitutional concerns about their accountability.In response to the perceived Moreover, entities such as the European Union (EU) are fostering the creation of private dispute resolution infrastructure for perceived competitive advantage.13 The World Bank 14 and USAID 15 are pressing for private dispute resolution systems as an element of basic legal infrastructure for the rule of law.Just as we have moved to control natural selection by using genetic engineering to create new life forms, so too we have moved to control the evolution of institutions and dispute systems through conscious design.16 The fields of institutional design and dispute system design both encompass the human activity of creating new rules, organizations, institutions, and forums to serve various goals related to public policy.However, through these systems, we are also designing justice.The question is, which kind of justice?My purpose with this essay is to raise, not to answer, this question.First, I briefly introduce the field of institutional analysis and design in social science.Second, I describe the field of DSD and apply elements of institutional analysis.Third, I survey how scholars have discussed varieties of justice in relation to legal institutions and other systems for managing conflict.The organizers of this symposium asked us to look toward the next generation of DSD.I conclude that the most significant issues for the future are: we must become more mindful of how designing institutions and systems to manage conflict affects justice; we should move more knowingly and intentionally to assess justice in DSD; and we owe it to the next generation of lawyers to teach them how to serve ethically in their new role as designers of justice.
Author: Lisa Blomgren Bingham
Language: English
Subfield: Law
Field: Social Sciences
Domain: Social Sciences
Open Access status: green
OpenAlex ID: W3121474551