Should we be teaching arbitration?

Gordon Smith offers an anecdote:

I spent two hours this morning with a state court judge. He told me that a decade ago he had 30-35 jury trials, and this year he has had two. Both criminal trials. We didn't have an opportunity to explore all of the variables that might have produced this result, but his point was that people (and businesses) simply don't use the judicial system anymore for civil litigation. This is not a new point, I realize, but it still made me pause and reflect on the litigation-oriented curricula at most law schools.

The anecdote is indicative a broader trend. Indeed, following the lead of Marc Galanter, many people now speak of the vanishing trial. In 2004, Galalnter reported that:

The portion of federal civil cases resolved by trial fell from 11.5 percent in 1962 to 1.8 percent in 2002, continuing a long historic decline. More startling was the 60 percent decline in the absolute number of trials since the mid 1980s. The makeup of trials shifted from a predom- inance of torts to a predominance of civil rights, but trials are declining in every case category.

Much of the blame (or credit, depending on your point of view) for this shift can be traced to the substantial shift from courts to various forms of alternative dispute resolution. Calvin Morrill's paper on the evolution of ADR provides a very good overview of the processes and trends that drove the shift away from courts to arbitration and the like.

I think Gordon is quite right that law school curricula needs to account for this development. Like most law schools, UCLA offers a handful of courses that entail some attention to ADR:

• Law 259 - International Commercial Arbitration (Prof. Dasteel) 
• Law 407 - Clinical: Mediation (Prof. Mosten)
  
• Law 409 - Clinical: Negotiation Theory and Practice (Prof. Korobkin)
• Law 535 - Seminar: Negotiation and Conflict Resolution Workshop (Prof. Korobkin) 
  

Curiously, there's no basic ADR course on offer. Nor, to the best of my knowledge, has there been a systematic effort to think through the implications of the vanishing trial for how we structure the curriculum. Instead, like most schools, we've been doing it sort of ad hoc.

If I were running a law school (god forbid), with the power to write on a blank slate, I would put transactional practice and ADR at the core of the curriculum. Students would not be able to graduate without some exposure to both. I'd also offer "majors" in transactional practice and ADR so as to provide students with a logical and coherent set of advanced courses for those who want to specialize.

But the debate between the cafeteria approach to legal education and the tracks or majors approach is a topic for another day.

Comments

[Veracitor]

So what do judges do all day?

Signing orders to compel arbitration, or enforce arbitration awards, can't take up all their time, can it?

[Anon]

Law 204 - Arbitration Law (Prof. Stone) is a good course offered at UCLA.

[Devil2L]

I'm a 2L at Arizona State and I think we're starting to see this at least at our school. Our Lodestar Dispute Resolution Program has grown a lot recently and the school offers 7 separate ADR classes. We also have a mediation clinic and a certificate in Legal Advocacy and Dispute Resolution.

Our new Dean is doing a great job taking a progressive approach to legal education--especially important the way the market is lately.

[DC Criminal Lawyer]

Because arbitration is a creature of contract, nearly all of arbitration law can be readily understood and appreciated through the familiar lens of contract doctrine. Arbitration law is contract law.
For example, many arbitration cases are cases about contract formation. Did a consumer’s use of her credit card to make a purchase manifest assent to the arbitration clause she received in the envelope with last month’s credit card bill? How does UCC § 2-207 -- the “battle of the forms” provision -- apply to a case in which the buyer’s purchase order does not mention arbitration but the seller’s acknowledgment form has an arbitration clause?
Consideration is a topic that receives a lot of attention in many Contracts courses but it is often treated from a historical perspective. How often, after all, do modern cases find a lack of consideration? This actually happens with some frequency in the arbitration context. For example, where is the consideration for an at-will employee’s promise to arbitrate? Does theanswer change depending on whether the employee made this promise before or after the employee started working at the job?
Defenses to enforcement -- such as misrepresentation, mistake, duress and unconscionability -- are an integral part of most Contracts courses. These contract defenses are also an integral part of arbitration law because the Federal Arbitration Act requires courts to enforce arbitration agreements "save upon such grounds as exist at law or in equity for the revocation of any contract." 9 U.S.C. § 2.
Remedies for breach – whether you put them at the start of your Contracts course or later – are undoubtedly important to contract law, and perhaps the most important feature of modern arbitration law is its willingness to grant a particular contract remedy, specific performance.
The list of contract law doctrines central to arbitration law could go on to include topics such third-party beneficiaries, waiver, and contract interpretation.

[jch]

Over the last 15 private judging firms that perform arbitration and mediation have sprung up all over the country. Sitting judges want to be part of the private judge system when they retire, so they make it extremeley difficult for litigants to have a jury trial and force as many cases as they can into the private firms. There are many judges in L.A. County whose courtrooms sit empty all day because of this nonsense and because the courts took away the master calendar system, which allowed the presiding judge to send a trial to the courtroom of a judge that wasn't busy.

[Tim]

Judges spend a lot of time on hearings for various motions, summary judgment, discovery-related, etc. There's a lot more to litigation than just trials.