Monday, January 22, 2007
Posted by Alan Childress
That assertion seems pretty obvious, but I take it one step beyond. While some courts have disciplined their members for making judicial decisions based on coin-flips and the like, a more subtle abdication seems to be catching on -- a Georgia federal court borrowed it from a Florida one -- that is no less troubling to me than deciding by lot: it is the practice or threat of ordering opposing attorneys to resolve their own differences by playing rock-paper-scissors.
Frank Snyder reports on the trend here at ContractsProf Blog, and adds a great note on the Texas version (rock-paper-gun). He has an excellent icon for his post that you need to click on to appreciate (much better than my generic one, right).
Judges are supposed to judge and decide. That function demands more than making litigants decide everything themselves, especially by arbitrary methodology. In the Georgia case, for example, one side was asking for a protective order. It may have no merit, or some, or a lot. But it should be decided by a judge, or worked out by the parties, and it brings no legitimacy to or confidence in the legal system if left to chance. I do not see much difference from the judge employing chance himself.
True, the Georgia judge (unlike the Florida one) did not quite "order" the new ADR, but the message still is that decisions made by the dartboard are as good as those made by people. That may be so in fact, but legitimacy and public expectation require more from the judicial process. Resolving disputes is not the only value added by judges.