July 28, 2011
Cohen: "The Family, the Market, and ADR"
This Article begins with the observation that in alternative dispute resolution (ADR) practice and scholarship, the family recurs as a model for thinking about other kinds of relationships, even in spheres that are commonly thought to be purely commercial or transactional in nature. This conflation of family/market paradigms is intriguing because, as Janet Halley has shown, for much of the nineteenth and twentieth centuries, American legal thought has virtually required “the division of intellectual labor” between the law of the family, on the one hand, and the law of the market, on the other hand. The Article thus explores the unexpected connections between models of the family and the market in contemporary ADR and compares them to earlier twentieth-century dispute processing reforms. Whereas Progressive era dispute processing reformers distinguished between the problems of the family (described as public and social) and the problems of the market (described as private and individual), contemporary ADR proponents describe problems in both domains as intensively interpersonal - and thus as both private and social, albeit social in a different way. Progressive era dispute processing reformers configured “the social” as a set of preexisting, collective policy concerns that encompassed the family and demanded a specific set of public interventions from the state. By contrast, contemporary ADR reformers have reconfigured “the social” into a set of affective, mutual relationships that individuals can and should build themselves - in the market, as much as in the home. In this sense, the Article argues, contemporary ADR has much in common with popular theories of societal self-regulation that weave together economic self-interest with more open-ended ideas of interdependence, affect, altruism, social capital, and trust. Using modern ADR as a case in point, this Article thus invites readers critically to consider the complex politics and potential distributional effects of contemporary governance regimes that aspire to integrate efficiency and relationality, individualism and altruism, economics and intimacy, the market and the family.
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