The Roles of Litigation in American Democracy

• Citation: Vol. 65 No. 6
• Publication year: 2016

The Roles of Litigation in American Democracy

Alexandra D. Lahav

THE ROLES OF LITIGATION IN AMERICAN DEMOCRACY

Alexandra D. Lahav^*

Abstract

Adjudication is usually understood as having two functions: dispute resolution and law declaration. This Article presents the process of litigation as a third, equally important function and explains how in litigation, participants perform rule of law values. Performativity in litigation operates in five ways. First, litigation allows individuals, even the most downtrodden, to obtain recognition from a governmental officer (a judge) of their claims. Second, it promotes the production of reasoned arguments about legal questions and presentation of proofs in public, subject to cross-examination and debate. Third, it promotes transparency by forcing information required to present proofs and arguments to be revealed.Fourth, it aids in the enforcement of the law in two ways: by requiring wrongdoers to answer for their conduct to the tribunal and by revealing information that is used by other actors to enforce or change existing regulatory regimes. And fifth, litigation enables citizens to serve as adjudicators on juries. Unlike other process-based theories of the benefits of litigation, the theory presented here does not hinge on the sociological legitimacy of procedures or outcomes. The democratic benefits of these performances ought to be considered in the reform of procedural rules.

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Introduction

Litigation is usually understood as providing two useful ends. The default, and perhaps most hard-wired, conception of litigation is as a mechanism for dispute resolution. Under the dispute resolution model, access to courts is understood as necessary to civil society because in the event that individuals cannot resolve their disputes on their own, they may resort to violence.¹ A second, somewhat less dominant but still prevalent model of litigation is as a system for law declaration.² In the law declaration model, access to litigation is necessary for the law to evolve because by bringing cases litigants force the courts to interpret and develop the law, which information is then used by others to guide their own conduct.³ Both of these approaches to litigation look at the ends of litigation: in the first model, resolution, and in the second model, law production and clarification. Both contribute to the regulatory function of litigation because individuals and organizations anticipate or learn from the results adjudication and adjust their behavior accordingly.⁴

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This Article presents a third understanding of litigation as a process in which litigants perform self-government. By performativity I mean that through repeated performance of certain practices participants form a collective identity—and perhaps transform their identity.⁵ The performances required by the process of litigation (although often ugly, ungainly, messy, and expensive) are democracy promoting, in addition to being a source for the resolution of disputes and resulting in law declaration and development. As Milner Ball wrote,

If the advocate's presentation of his client's case is a form of theater which is played to the judge or jury and which contributes to judgment, there is also the theater of the courtroom itself—embracing all that goes on within—played to the public at large. It is the function of this drama to provide an image of legitimate society. In this sense, it is importantly an end in itself.⁶

The process of litigation promotes democracy by permitting participants to perform acts that are expressions of self-government. An obvious example of how the process of litigation promotes democracy is civil rights litigation, which allows individuals who are otherwise shut out of the democratic process to access a governmental official (the judge) who must listen to their claim.⁷ But even the types of cases that are usually categorized as ordinary, private litigation—such as contract disputes or tort suits—enable individuals to engage in self-government by asserting their claims, presenting proofs and reasoned

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arguments about their case, and forcing information that can be used by policy makers or institutions outside the court to regulate primary behavior. In sum, it is not only the decision in the case that promotes the rule of law in a democracy (although that is important) but also the process that individuals and groups engage in to get there.⁸ Litigation is often conflated with dispute resolution and law declaration (or adjudication), but it has its own independent contribution to make to the American system of government.

This Article proceeds in three Parts. Part I considers three preliminary issues: the definition of democracy; the question of comparative institutionalism; and the fact that litigation, in addition to having benefits, also has costs which must be recognized at the outset. Part II describes five contributions which litigation makes to self-government: recognition, production of reasoned arguments, transparency, enforcement of the law, and direct participation in adjudication through jury service. Part III describes some challenges to the ability of this process to allow individuals to perform self-government, including recent judicial decisions that evidence a failure to understand litigation as a social good, and briefly considers changes that might be spurred by understanding litigation as it is presented here: a process that allows participants to perform democracy.

I. Preliminary Considerations

Three preliminary issues should be considered before embarking on the central argument. First, it is important to define what I mean by self-government in the context of this discussion. Second, are there

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possibilities of performing democracy in the contexts of other institutional arrangements (that is, not in the courts)? Finally, what are the costs, as well as the benefits, of litigation?

A. Deliberative Democracy

what kind of democracy we actually have and what kind of democracy we ought to have in the United States are contested questions. There are a number of competing definitions of the American system of government used by legal scholars and political theorists, ranging from a democracy grounded in popular sovereignty to republicanism.⁹ A thorough analysis of the various strands is beyond the scope of this Article. I begin with the idea that democracy is self-government, and that the contest is over which procedures and structures of government can be considered legitimate forms of self-government.¹⁰

Self-government can be consistent with a variety of procedural and institutional structures, even within a single polity. The various institutions in a democracy may be structured differently within a democratic whole and make diverse contributions to self-government.¹¹ The view of democracy espoused here is focused on the courts as an institution and draws on the theory of deliberative democracy. Deliberative democracy rests on the idea that in order for decisions to be politically legitimate they must be justified by "reasons that should be accepted by free and equal persons seeking fair terms of cooperation."¹² The courts have been a particularly attractive institution to

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deliberative democrats because the courts are committed to reasoned argument in the decision-making process. Some theorists, for example, have focused on the idea of the judicial opinion as an articulation of public reason.¹³ What I hope to show is that litigation allows people (not only judges) to engage in deliberative democratic governance by developing, expressing, and debating reasons, proofs, and outcomes.

It is often noted that some types of adjudication provide a process that allows individuals to trump majority rule and, as a result, adjudication is sometimes anti-majoritarian.¹⁴ To the extent that majoritarianism is synonymous with democracy, this renders adjudication also anti-democratic. Sometimes the results of adjudication are in conflict with the decisions of democratically elected legislatures or executive action and there is a great deal of important scholarship on the relationship between the different branches of government when this occurs. In that scholarly literature, the focus has been on judicial review—that is, on the results of adjudication and the relationship of judicial decisions to decisions made in other branches of government, as well as the relationship of judicial decisions to the idea of majority rule.¹⁵ It is possible that shifting the focus to the process of litigation, as distinct from adjudication, may shed some light on these debates because the litigation phase involves acts by individual citizens—sometimes against the democratic whole, sometimes against atomized fellow-citizens—but this question is not analyzed here. I only note that while litigation promotes democracy, it can also impede some forms of democratic rule, particularly majoritarian decisions in cases where individuals or groups seek to overturn legislative enactments.

B. Comparative Institutionalism

I recognize at the outset that other institutions could be created to serve the democratic functions discussed in this Article and, to some extent, existing

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institutions already do. Arbitration, mediation, and other alternative dispute resolution systems provide alternatives for resolving disputes outside the courthouse, and, theoretically, these mechanisms could be structured to promote recognition, reasoned argument, and transparency.¹⁶ Agencies promulgate rules that have the force of statutory law and provide notice-and-comment procedures that allow people to influence the rulemaking process.¹⁷ In so doing, they provide a type of deliberation and reasoned argument. Agencies also have processes of adjudication that could be more or less democracy promoting depending on their design.¹⁸

This, however, is not a comparative institutional...