January 23, 2011


Resnik, Judith, & Dennis Curtis, Representing Justice: Invention, Controversy, and Rights in City-States and Democratic Courtrooms (New Haven & London: Yale U. Press, 2010) ("In closing [Chapter 1: A Remnant of the Renaissance: The Transnational Iconography of Justice], we offer but a few of the ways to invoke the challenges of democratic justice in the twenty-first century and the diverse means to make accessible processes, ranging from settlements negotiated under the aegis of courts to rulings by judges. By traveling from the Great Victorian Desert in Australia to the northern corner of Minnesota, we identify examples of efforts to visualize the work of opening doors to courts. Presented in this amalgam are not only acts of memory--reclaiming the stories of justice and injustice--but also efforts to advance a vision that democratic justice is not simply continuous with the practices of adjudication predating democracy. To practice justice today is an ambitious project, and to represent it requires devising ways to acknowledge what democracy brings to adjudication: a new and genuinely radical aspiration to find ways to make earthly justice available to people, if not to all. Id. at 17 (italic added). "In this discussion, we are not speaking of democracy defined only through popular sovereignty principles expressed by electoral processes. Rather, we are interested in a broader conception. Part of what makes a social order democratic is a political framework striving to ensure egalitarian rights, attentive to risks to minority subjugation, and engendering popular debate about governing norms. Deep and genuine disagreements exists about what rules ought to prevail and which forms of behavior ought to be sanctioned. Uncensored exchanges in the press and through the mails have become familiar conditions of democracy; our argument here is that adjudication is likewise a condition of democracy. The normative obligations of judges in both criminal and civil proceedings to hear the other side, to be impartial, and to provide public processes enable two forms of democratic discourse. A first comes from the authority of the audience, empowered to watch the direct participants--litigants and judges--in an adjudicatory exchange; the second stems from the rules that structure the discourse among the disputants and jurist. Id. at 301 (italic added). Professors Resnik and Curtis ask us, all of us, to engage in meaningful discussions and debates regarding the relationship between courts and democracy. Impartial, public adjudication is central and essential to democracy. Resnik and Curtis suggest/argue that 'impartial, public adjudication' is being replaced by less impartial, and far less public forms of private alternative processes of dispute resolution. The questions raised is this: Notwithstanding the purported benefits of these alternative processes (e.g., less costly money-wise, less time consuming,), whether the cost to democracy generally, and democratic justice specifically, is too high. Also, see the review by Randy Kennedy, "That Lady With the Scales Poses for Her Portraits," NYT, Thursday, 12/16/2010.).