Disputing Together: Conflict Resolution and the Search for Community

Published in cooperation with the American Bar Association Section of Dispute Resolutio

Communitarianism and the Roberts Court

In this Article, Professor Ackerman examines the work of the Roberts Court through a communitarian lens. Communitarians strive for a reasonable balance between individual rights and the collective good. They believe that even in a rights-conscious society, rights have limits, and involve responsibilities. And so, communitarians will often consider whether the Supreme Court has struck a proper balance between individual liberty and the public interest. But communitarian theory has other, multidimensional aspects. Communitarians view people as social animals, who are not mere autonomous agents with nobody to care about but themselves. They therefore see the value not only of large-scale communities (such as an entire nation) but of smaller, intermediate communities, such as states, labor unions, civic organizations, religious congregations, and—at the most intimate level—families. As a con-sequence, Professor Ackerman asks whether, in cases ranging from Citizens United to Obergefell, the Court has adequately considered the role of intermediate communities—what we call “civil society”—in pursuing the good and animating citizens to connect with one another. Finally, Professor Ackerman sees communitarianism as a way to view the world in a non-binary manner, thereby breaking down the political barriers that impair our ability to reason together and formulate good law and policy

Taking Responsibility

Communitarians have suggested that a balance must be struck between individual rights and the public welfare, and that our self-seeking tendencies must sometimes be set aside in pursuit of the common good. Government is often (although not always) the mechanism through which common interests are advanced. An abdication of government responsibility may result in disaster, as was the case with respect to Hurricane Katrina and its aftermath. At the other extreme, the accumulation of too much power in government can also bring about catastrophic consequences, as in the case of the 1986 Chernobyl nuclear plant disaster in the Soviet Union. A balance must be struck between the extremes of government passivity and all government, all the time. Traditionally, this tension has been framed as one of libertarianism versus collectivism; in current American political parlance, that of liberalism versus conservatism. But communitarians are more likely to view these issues in terms of an adjustment of interests, to be determined in the political arena, than as a clash of rights, to be adjudicated in the courtroom. This essay suggests a communitarian framework for analyzing the boundaries of government power and responsibility

Vanishing Trial, Vanishing Community - The Potential Effect of the Vanishing Trial on America\u27s Social Capital

This essay considers the communitarian implications of the vanishing trial phenomenon. Its language is tentative, because while we now have-thanks to Marc Galanter and his associates-a great deal of useful data on the vanishing trial, we have only some hints regarding its causes, and an even less concrete notion of its likely consequences.\u27 The empirical data unearthed by Professor Galanter and others has debunked a number of myths regarding the litigiousness of our society and the extent to which the courts are employed to resolve disputes. Given the care that has been invested in this research, it would be reckless to jump prematurely to conclusions regarding its implications, for example, by stating that the vanishing trial is but further evidence of the decline in America\u27s social capital. But the diminishing opportunity for Americans to convene publicly and formally in a trial setting nevertheless has disturbing implications for communitarians, which we ought not ignore. In particular, we should be concerned about developments that remove law and legal institutions from broad participation by the citizenry and concentrate them in the hands of an educated elite. I therefore hope the reader will allow me to indulge in some semi-educated guesse