JUSTICE AND DISPUTE SYSTEM DESIGN
Syllabus Spring Semester 2007 

Prof. Lisa Blomgren Bingham
Visiting Professor of Law
UC Hastings College of the Law
Room 1227
100 McAllister Street
San Francisco, CA 94102
Email: binghaml@uchastings.edu 

Description: Proponents advocate alternative or appropriate dispute resolution (ADR) as a means of providing justice other than through the civil or criminal justice systems. They argue that these systems are either inaccessible or ill-suited to address the interests of disputants. Employees may seek recognition of unfair or inappropriate treatment in the course of a long and perhaps continuing relationship. Divorcing couples need to learn how to resolve disagreement and collaborate on parenting after the marriage ends. Businesses may wish to turn a contract dispute into a new and more workable long-term deal. Victims of crime may seek evidence of remorse and want personal forms of restitution instead of prison terms. Proponents argue that dispute resolution can provide better procedural justice; disputants with more voice in and control over a decision-process perceive the process and its outcome to be fair. Proponents also argue that these processes can provide better substantive or distributive justice than a civil justice system that the disputant needs a lawyer to navigate.

            However, a case in which parties use dispute resolution does not occur in a vacuum. It occurs in the context of a system of rules and steps called a dispute system design. Moreover, it exists in the shadow of traditional justice systems. The civil and criminal justice systems represent dispute system designs created by a third party, government, in the context of a constitutional framework and the rule of law. Critics point out that government is not the only player that has an opportunity to shape and control dispute system design. Some commentators have identified the privatization of justice as a significant issue. For almost a century, the courts have protected the rights of contracting parties mutually to create a private justice system, for example in labor relations or commercial contracts, in which they substitute mediation and/or binding arbitration for litigation. More recently, the courts have enforced the right of one party to a contract to impose dispute resolution on the economically weaker party through an adhesive contract clause. Thus, a single disputant can unilaterally design and administer a dispute resolution system for cases to which it is a party.

            What happens to justice when different players control the design of a dispute system? Are there differences across dispute system designs in procedural or substantive justice? Are there differences in the nature of the cases, processes, decision standards, discovery, or available damages? Are there differences in which parties can access the system, when, and where? What is the impact of dispute system design, and control over it, upon justice? How do we compare these systems to the traditional justice systems? Is a systematic empirical comparison possible? Is it desirable as a matter of public policy?

This class will investigate literature that defines justice for purposes of dispute systems from the disciplines of philosophy, law, and social science. It will examine not only distributive or substantive and procedural justice, but also theories from organizational behavior such as interactional, informational, and interpersonal justice, and theories from sociology and anthropology concerning differences in justice across individualistic and collectivist cultures. It will examine the theory and practice of dispute system design, and identify the elements that can vary across dispute systems. Finally it will explore the impact of varying design choices in a dispute system on dispute processing, the perceptions and experience of disputants, and ultimately, justice.

Readings and Required Text:

Tricia S. Jones (Editor), Conflict Resolution in the Field: Assessing the Past, Charting the Future, Conflict Resolution Quarterly, Volume 22, Number 1-2. San Francisco, CA: Jossey-Bass Publishers (2004).

Course packets of additional readings will be available from the Bookstore.

NOTICE: Please consider this syllabus to be in draft form and subject to revision. This is a new course, and I may need to adapt things depending on our progress through the material.

Graded Assignments:

Your grade will be based upon three components:

1. Class participation. This will represent six (6) percent of your grade.

2. Write three reflections on the reading, each one-page: long. Over the course of the semester, select a reading upon which to reflect in writing. Apply the contents of that reading to a particular dispute system design or conflict resolution context or based on your experience. Share your thoughts with the class. These will represent three (3) percent each for a total of nine (9) percent of your grade.

3. A mid-term examination: This will be anonymously graded and represent 50 percent of your grade.

4. A final research paper (10-15 pages double-spaced) on a topic of your choice approved in advance and oral presentation on your paper to the class: This will represent 35 percent of your grade. Your paper may take the form of a research paper or a project. For example, you can document a particular local dispute system design through field research and critique it in light of the literature we read in class.

Weekly Topics and Reading Assignments:

Week 1: January 16

Tuesday: Introduction to Dispute System Design (DSD): Naming, Blaming, and Claiming; ADR Processes, DSD Elements

Week 2:  January 22-23

Monday: DSD in Labor Relations as the Model System

Tuesday: Repeat Players

Week 3: January 29-30

Monday: Control over DSD: One, Two, and Third-Party Designs

Tuesday: Third Party Designs: DSD in Civil Litigation the State and Federal Courts using Mediation and Arbitration

Week 4: February 5-6, 8

Monday: Justice in Jurisprudence

Tuesday: More Justice in Jurisprudence 

Week 5: February 12-13

Monday: Justice in Social Science

Tuesday: Compared to What? Macrojustice and Microjustice: Empirical Approaches to Evaluating ADR

Week 6: February 20

Tuesday: DSD and Employment Law: Arbitration

Week 7: February 26-27

Monday: DSD and Employment Law: Mediation

Tuesday: Efforts to Regulate or Self-regulate to Protect Justice

Week 8: March 5-6

Monday: CATCH UP AND REVIEW

Tuesday: MIDTERM EXAM

Week 9: SPRING BREAK

Week 10: March 19-20

Monday: Justice and DSD in Family Courts

Tuesday: Justice and DSD in Community Mediation

Week 11: March 26-27

Monday: Family and Community in other cultures

Tuesday: Justice and DSD in the Schools

Week 12: April 2-3, 6

Monday: Justice and DSD in Criminal Law: Restorative Justice

Tuesday: DSD and Justice for the Environment

Friday: Cultural and Demographic Differences in DSD

Week 13: April 9-10

Monday: Truth and Reconciliation Commissions

Tuesday: Comparative and International DSD

Week 14: April 16-17

Monday: DSD and the Policy Process

Tuesday: Paper presentations

Week 15: April 23-24

Monday: Paper presentations continued

Tuesday: Concluding lecture and discussion

Final Papers Due May 1, 2007.


Copyright 2007 Lisa Blomgren Bingham. Teachers are free to copy these materials for educational use in their courses only, provided that appropriate acknowledgment of the author is made. For permission to use these materials for any other purpose, contact the author.