Critics of Owen Fiss’s famous 1984 Against Settlement widely assumed that he indicted alternative dispute resolution (ADR) as intrinsically incapable of promoting public values. This essay, however, suggests that Fiss offered a socially and historically contingent prediction about ADR’s potential to undermine popular commitments to redistributive justice during a period of intense economic liberalization in the United States. To support this rereading, the essay considers how Fiss envisioned the promotion of public values in a different space and time—specifically in international contexts at the turn of this century. Here, he endorsed decentralized, deliberative, and extrajudicial processes, even if he did not quite endorse ADR. The standard reading of Against Settlement suggests that Fiss believed that the simple alternation of institutions (from adjudication to ADR) could change our political possibilities in fundamental ways. But once we characterize Fiss’s polemic for adjudication and against settlement as, more broadly, an argument for a particular kind of public morality and against an overarching market rationality currently espoused by neoliberalism, then the choice between competing institutional forms becomes less determinate, and—this essay argues—Fiss’s overarching challenge to the field of dispute resolution becomes more irresolvable and enduring.
Amy J. Cohen,
Revisiting Against Settlement: Some Reflections on Dispute Resolution and Public Values,
78 Fordham L. Rev. 1143
Available at: http://ir.lawnet.fordham.edu/flr/vol78/iss3/3