Document Type

Working Paper

Publication Date

11-18-2004

SSRN Discipline

Legal Scholarship Network; Law School Research Papers - Legal Studies; Litigation, Procedure & Dispute Resolution eJournals; LSN Subject Matter eJournals; Law School Research Papers - Public Law & Legal Theory

Abstract

The political and judicial response to the socalled litigation crisis has had a profound but littlenoticed effect on the traditional place that legal norms occupy in law Litigation reforms have obscured and removed legal norms from the center of the legal process Law itself has been privatized obscured and even erased most often by its protectors and guardians judges and the courts Eager to streamline and expedite legal proceedings various devices and procedures have changed the face of both civil and criminal litigation As one example the dramatic increase in settlement plea bargaining and alternative dispute resolution renders many disputes privately rather than publiclyjudged Standards of review doctrines that emphasize discretionary review and doctrines such as harmless error serve to obscure and distort the application of legal norms Other practices such as designating certain judicial decisions as unpublished opinions and thus limiting the circumstances under which such an opinion may be used as precedent also limit the public nature of law These and similar devices and procedures limit both the public nature of law and the law itself by reducing the number of cases fully litigated by reducing the available case precedents and by reducing appellate review and scrutiny Law has become less public and less accessible legal norms that should inform people of the acceptable limits on their behavior are lost or obscured The anomalous nature of cases that are fully litigated and decided even fewer of which are appealed and still fewer of which result in a published opinion raises questions about their value as precedent and as embodying societal norms The loss of substantive law from the public realm distorts the legal landscape limits public testing and debate of legal norms and devalues or destroys institutional competencies Taken together we refer to these developments as presaging the end of law This Article explores and analyzes these developments and concludes that the traditionally understood processes of law are fading from or perhaps more accurately are being hidden from view with negative consequences for both law itself and for society as a whole

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