The Family, the Market, and ADR

This Article proceeds in three Parts. I begin by briefly summarizing what I will refer to as separate spheres ideology-the idea that our normative understandings of the family and the market are constructed in contradistinction to one another. I then show how this conceptual distinction between the family and the market shaped the development of alternative dispute processing during two periods of time. The first period, which I introduce to frame the second, examines how dispute processing reformers-beginning during the Progressive era and continuing to the 1930s-distinguished alternative forums for family disputes from alternative forums for commercial ones. In Part II, examine how ADR scholars and practitioners in the 1970s and 1980s promoted analogous ideologies and techniques for both family and market disputes, most commonly through the procedural techniques of mediation. In this sense, I conclude, modern ADR coincides with the development of popular theories of societal self-regulation that weave together economic self-interest with more open-ended ideas of interdependence, affect, altruism, social capital, and trust. This Article thus aims to shift and broaden our debate: rather than continue to ask whether ADR undermines public governance (or the rule of law), this Article instead invites readers critically to consider the politics and potential distributional effects of contemporary private ordering regimes that aspire to integrate efficiency and relationality, individualism and altruism, economics and intimacy, the market and the family

Supermarkets in India: Struggles over the Organization of Agricultural Markets and Food Supply Chains

This article analyzes the conflicts and distributional effects of efforts to restructure food supply chains in India. Specifically, it examines how large retail corporations are presently attempting to transform how fresh produce is produced and distributed in the new India-and efforts by policymakers, farmers, and traders to resist these changes. It explores these conflicts in West Bengal, a state that has been especially hostile to supermarket chains. Via an ethnographic study of small producers, traders, corporate leaders, and policymakers in the state, the article illustrates what food systems, and the legal and extralegal rules that govern them, reveal about the organization of markets and the increasingly large-scale concentration of private capital taking place in India and elsewhere in the developing world

Ethical Negotiation and Postcapitalist Politics: An Essay for Carrie

In a 1983 article, Legal Negotiation: A Study of Strategies in Search of a Theory, Carrie Menkel-Meadow took stock of what was motivating a diverse range of scholars to want to reimagine negotiation theory. She described these negotiation scholars as shaped by the exigencies of their own political moments. Some were lawyers concerned about too much litigation of an unsatisfying quality. Many, however, were concerned more broadly about “the general level of hostility in the world,” even haunted by the possibility that nuclear weapons could destroy all of humanity. Negotiation scholars included “[e]conomists and game theorists . . . concerned that the earth’s limited resources be allocated efficiently and productively,” as well as “[e]thicists . . . concerned that those resources be divided fairly.” Carrie’s own pioneering work would soon establish that a few of these scholars—including those who cared about ethics—approached negotiation through feminist theory. In 1984, in a pathbreaking and widely celebrated article, Toward Another View of Legal Negotiation, Carrie introduced what she called a problem-solving model of negotiation. She included a footnote with an argument she foreshadowed in Legal Negotiation and that she would develop in subsequent years. Her position was that problem-solving negotiation should enact a feminist ethic of care. From this perspective, negotiation is not only a set of professional tools but a deeply ethical practice—a means of cultivating self and social relations differently. In this celebration of Carrie’s contributions to feminist theory, I suggest that Carrie’s early work in negotiation created an opening for a radically caring and democratic practice of negotiation—one whose underlying feminist values of interdependence and connectedness implicitly and explicitly challenge capitalist logics of competition and accumulation. Speaking broadly, she told her readers that “[t]he goal, rooted in experience, [is] achieving a world without domination.” Echoing the feminist turn in critical legal studies, of which she was an important part, Carrie called for a world without patriarchal domination but also without domination produced through socioeconomic relations. Contextualizing this project, I will also suggest that negotiation theory, as it mainstreamed in legal and popular practice and notwithstanding Carrie’s inspiration, has not yet embraced the radicalism she envisioned, but rather, in notable ways, has turned away from it. And yet the legacy of Carrie’s visionary work as a set of possible prescriptions remains. As offering and as inspiration, Carrie’s work awaits interpretations and reimaginings by people shaped by the exigencies of their own political moments. In the spirit of such reimaginings, undertaken in the present tense and as its own way of honoring her work, I read Carrie’s scholarship together with the work of J.K. Gibson-Graham, the pen name of feminist Marxist economic geographers Katherine Gibson and Julie Graham, and their collaborators. By means of this reading, I endeavor to show how Carrie’s work holds space today for a feminist praxis of negotiation—a praxis organized around the “ethical question of our interdependence with others and its implications” rather than the coordinates of “growth” and distribution” more familiar within the field of negotiation Carrie so vitally helped seek to change