Constitutional gravity and alternative dispute resolution: A unitary theory of public civil dispute resolution.

摘要

Under the traditional bipolar model, dispute resolution is divided into two spheres: "litigation," which is public in nature and subject to constitutional safeguards, and alternative dispute resolution, which is private in nature and not subject to constitutional constraints. This dissertation presents an alternative view, ultimately proposing a unitary theory of public civil dispute resolution that recognizes the need for minimal but meaningful constitutional safeguards in many ADR processes.; Chapter I provides an overview of dispute resolution processes, tracing the history and modern structure of ADR. It also identifies a gap between high institutional support and low voluntary usage of ADR, and suggests one reason may be the lack of constitutional safeguards that leaves ADR processes open to potential abuses of personal and property rights.; Chapter II explores the "state action" doctrine, the principal mechanism by which the U.S. Supreme Court has drawn the line between public and private conduct. Applying those teachings to ADR, it concludes that court-ordered, legislatively or administratively mandated, and, in some cases, contractual ADR can constitute state action for constitutional purposes.; Chapter III addresses the relationship between contractual and constitutional rights, including an approach for assessing the actual voluntariness of arbitration agreements and a related call for reinvigorated judicial fidelity to principles of state contract law. It further suggests that a "knowing and voluntary" agreement to arbitrate, valid under state contract law, waives all substantive legal rights, as well as procedural rights except for the basic due process right to a fundamentally fair hearing.; Chapter IV synthesizes these findings into a unitary theory of public civil dispute resolution by demonstrating how due process standards may be incorporated into seemingly private ADR processes in a minimal but meaningful way that preserves and enhances those processes, while remaining faithful to constitutional expectations. For arbitration, these standards include the right to a neutral forum, the right to present and confront evidence, and the right to counsel. For mediation, they include the right to a neutral forum, the right to participate as one wants, and the right to counsel. In advisory processes, they are limited to the right to counsel.