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Arbitration and Americanization: the paternalism of progressive procedural reform.

FEATURE CONTENTS

INTRODUCTION
I.   PROGRESSIVE-ERA LAWYERS' PURSUIT OF PROCEDURAL REFORM
     A. The Enactment of the FAA
     B. New Challenges to Lawyers' Longstanding Leadership Role
     C. The Appeal of Arbitration and Conciliation (and Progressive
        Lawyers' Tendency To Equate the Two)
II.  COURTS OF "SMALL CLAIMS AND CONCILIATION" AND THE
     PROGRESSIVE CAMPAIGN TO AMERICANIZE THE URBAN, IMMIGRANT
     POOR
     A. The European Model of the Conciliation Court and the
        (Largely) Failed Nineteenth-Century American Efforts To
        Transplant It
     B. The Progressive Prototype: Manuel Levine's Cleveland-Based
        "Conciliation Branch"
III. THE "AMERICAN CONCEPT OF ARBITRATION" AND THE NEW IDEAL OF
     PRIVATE PROCEDURE
     A. Kellor's Early Life and Career: Social Gospel, Settlement
        Houses, and Americanization
     B. The Great Depression: Kellor's Initial, Corporatist Vision
        of Arbitration Within the AAA
     C. The Cold War: Kellor's Later, Free Market Account of
        Arbitration Within the AAA
CONCLUSION


INTRODUCTION

Even as Alternative Dispute Resolution (ADR) has become increasingly common over the last several decades, the debate over its perceived virtues and vices has intensified. For just about every claim made on behalf of ADR, critics have arisen to assert the contrary. While much of the debate has focused on the extent to which ADR achieves the cost- and time-savings promised by its advocates, (1) the discussion has also addressed fundamental values extending well beyond efficiency. Advocates of ADR insist that it is more effective than adversarial procedure at promoting values of party participation--and thus autonomy--and at ensuring broad, meaningful access to justice. (2) In contrast, detractors claim that ADR's promises of party autonomy and increased access are often hollow in practice. In their view, ADR advances the interests of a select elite, while denying countless ordinary individuals the remedies afforded by the proverbial day in court. (3)

While the debate over ADR has ranged across a number of specific dispute resolution practices, it is arbitration--and, in particular, binding, pre-dispute arbitration--that has lately assumed center stage. In recent years, the United States Supreme Court issued a series of opinions reinterpreting the Federal Arbitration Act of 1925 (FAA), the net effect of which has been significantly to expand the enforceability of binding, pre-dispute arbitration clauses. (4) As a result, such arbitration is now used widely, including in consumer and employment disputes--a practice that makes the United States an outlier among democratic, economically developed nations. (5) Advocates of these developments suggest that they increase access to justice (by lowering procedural costs) and reflect a commitment to party autonomy (as embodied in contract). (6) Opponents argue, by contrast, that consumers and employees forced into binding, mandatory arbitration are denied the procedural tools required for meaningful vindication of their rights. Moreover, they assert, such arbitration is the product of contracts of adhesion and therefore reflects (and reinforces) these disputants' relative lack of power, rather than their autonomy. (7)

In this context, a number of legal scholars--including especially those critical of the Court's recent arbitration jurisprudence--have turned to the past in an effort to mine history for potential ammunition. Towards this end, many have emphasized that the immediate roots of the FAA lay in a massive lobbying campaign to promote arbitration initiated by the New York Chamber of Commerce. This campaign led first to the enactment of a New York arbitration statute in 1920 and thereafter to the passage of the FAA, conceived as a federal variant of its state predecessor. (8) Pointing to these origins, as well as to the fact that businessmen in this period were increasingly organizing into trade associations (each with its own rules for resolving intra-communal disputes), these scholars have suggested that the core purpose of the statute was to promote merchant self-regulation. For example, according to Katherine Stone, the FAA can be understood as following from a broader commitment to associationalism --a kind of proto-corporatism, backed by Herbert Hoover in his capacity as Secretary of Commerce, which would soon find full expression in many of the policies of the New Deal. (9) From this perspective, the effort of the U.S. Supreme Court to expand the reach of the FAA well beyond commercial arbitration marks a clear departure from the drafters' goal of promoting a form of communal, intra-merchant dispute resolution.

More recently, Hiro Aragaki has authored an important article that departs from the usual focus on the New York Chamber of Commerce as the driving force behind the FAA's enactment. (10) In his telling, the FAA emerged from the efforts of diverse interest groups, including not only businessmen eager to facilitate a form of private ordering, but also Progressive legal elites, like Roscoe Pound and William Howard Taft, who were committed to promoting procedural reform. (11) More particularly, the FAA's effort to minimize procedural complexity--to facilitate "access to an alternative forum" characterized by "simplicity, flexibility, and intolerance of technicalities"--indicates that it "embodied the basic procedural reform values shared by Pound and his colleagues." (12) Along similar lines, Imre Szalai has argued for the importance of "looking at the arbitration reform movement through the lens of the progressive era." (13) Doing so, he claims, reveals that the FAA was "a significant, early triumph at the national level in a broader movement for procedural reform." (14) From this perspective, the fact that the Supreme Court's expansive arbitration jurisprudence gives short shrift to core procedural values suggests that it runs counter to the intended purposes of the FAA.

These scholars' recognition that the FAA's enactment was part and parcel of a broader program of Progressive procedural reform is a vital contribution to the scholarly literature. But the background portrait of such reform on which both Aragaki and Szalai draw--one common to the literature on civil procedure --glosses over much of the complexity of Progressive procedural commitments. Such scholarship treats the Federal Rules of Civil Procedure--the centerpiece of modern-day civil procedure--as the crowning, though delayed, achievement of Progressive reform efforts, (15) enshrining (in the famous language of Rule l) the Progressive commitment to "the just, speedy, and inexpensive determination of every action." (16) The end result is a largely celebratory teleology, leading from a Progressive commitment to access to justice to the eventual enactment of the Federal Rules.

But the Progressive campaign to remake procedure was not limited to the federal courts. If we look at the local level, where, as Michael Willrich notes, "historians of twentieth-century American law and the state too rarely travel," it is the effort to create new, centralized systems of municipal courts that assumes center stage as the core focus of Progressive procedural reform. (17) Indeed, unlike the campaign to enact the Federal Rules, which bore no fruit until 1938, the Progressive effort to develop centralized municipal courts achieved immediate results, leading, in Willrich's words, to "a sweeping reorganization of judicial institutions in the early twentieth century." (18) Moreover, one of the leading such courts--that of Chicago--enabled (in the criminal context) "the rise of eugenics and other coercive forms of social governance." (19) This should give pause to those who would depict Progressive procedural reform as exclusively other-serving and benign. As Willrich concludes, Progressivism cannot be easily framed as "a project of either 'social justice' or 'social control,'" but was instead at once both one and the other. (20)

If we are to understand how the Progressive lawyers responsible for the enactment of the FAA conceived of arbitration (and its relationship to broader reform goals), we must substantially broaden our conception of what "procedural reform" entailed, looking well beyond the Federal Rules on which civil procedure scholars tend to fixate. Nor is it sufficient to focus on the statutory language of the FAA and its immediate legislative history. As has long been recognized, the statutory text is too terse and "indeterminate," and the congressional record "too sparse," to provide real interpretive guidance. (21) To make meaningful sense of the FAA and of the Progressive conception of arbitration more generally, it is necessary to examine Progressive lawyers' efforts to develop concrete institutional structures responsible for deploying the procedure--an area of inquiry neglected by scholars to date.

There were two primary institutional contexts in which Progressives sought to use arbitration: the new municipal courts and the American Arbitration Association (AAA), established in 1926. As deployed within the municipal courts, arbitration was imposed at the discretion of the judge, rather than, as contemplated in the FAA, through prior agreement of the disputants themselves. In this sense, it is the AAA--created specifically for the purpose of facilitating the new system of arbitration envisioned by the FAA--that is the most direct institutional reflection of the statute's intended implementation. Nonetheless, some exploration of the Progressives' approach to arbitration within the municipal courts is critical to any effort to understand how Progressive lawyers viewed arbitration and its connection to their broader procedural reform commitments. This is in part because the municipal courts were so central to the Progressive project of procedural reform more generally. In addition, it seems likely that experience with arbitration within the municipal courts, though limited, played a role in shaping attitudes towards arbitration in the (later emerging) AAA.

Although there are differences in how arbitration was conceived as between the municipal courts and the AAA--and even in how it was conceived over time within the AAA itself--there are, nonetheless, striking continuities. Most importantly, legal elites consistently embraced arbitration as a means of expanding access to justice (and thereby promoting national unity and values), while also empowering themselves to exercise significant paternalistic discretion. (22) Progressive lawyers' vision of arbitration thus combined a genuine commitment to broadening access to justice with reflexive and deep-rooted paternalistic assumptions about the inherent wisdom and authority of legal elites like themselves. Present-day debates over whether arbitration makes justice more readily available or instead reinforces elite power can therefore be understood as reflecting the twin sides of an earlier Progressive-era conception of arbitration. This is not to claim that but for the Progressive-era developments traced below, arbitration today would not be subject to these dueling characterizations. To the contrary, arbitration has a very long history, both in the United States and elsewhere; and there is good reason to believe that in many contexts arbitration's appeal has been precisely that it promises a utopian inclusivity denied by formal legal process, even while affording community elites a mechanism for promoting their own interests (and thus the status quo). (23) But modern arbitration under the FAA is most immediately a legacy of the Progressive era and its movement for procedural reform. Accordingly, the deeply paternalistic tendencies of this movement--though too often ignored by procedure scholars--ought to serve as a cautionary reminder to those who might otherwise ignore arbitration's downsides.

Part I explores the vital contribution made by Progressive lawyers to the enactment and subsequent implementation of the FAA. It examines the complex combination of ideological commitments, on the one hand, and professional and status anxieties, on the other, that led many elite (and would-be elite) early twentieth-century lawyers to pursue procedural reform. In so doing, it considers why these lawyers were drawn to both arbitration and conciliation (now mediation) and why--though it seems strange to us today--they tended to view these procedures as roughly parallel forms. In their view, both forms of dispute resolution promised release from the constraints of excessive legality, affording a means to address the complex problems of modern industrial society, but in ways that (unlike newly emerging social science and administrative law) preserved for lawyers the possibility of exercising significant paternalistic discretion.

Part II examines the "small claims and conciliation" branches that Progressives developed within many municipal courts as their leading approach to the problem of urban civil justice. Given the centrality of small claims and conciliation courts to the Progressive vision of procedural reform and the tendency among Progressives to equate conciliation with arbitration, these institutions provide an important window into how Progressives viewed arbitration and its relationship to broader procedural reform goals. This Part describes how the idea for such courts drew on the European model of the "conciliation court"--an institution whose virtues and vices were extensively debated by nineteenth-century Americans. Ironically, while earlier generations had ultimately decided against transplanting conciliation courts on the grounds that they promoted an un-American tendency towards corporatist hierarchy, Progressive lawyers sought to use a later variant of this same institution to "Americanize" the urban, immigrant poor--an endeavor that combined the quintessentially Progressive commitments to assisting the underserved and exerting social control.

Part III turns to the AAA--the institution in which arbitration took most meaningful root. Towards this end, it explores the life and thought of Frances Kellor, a lawyer and sociologist who was a co-founder of the AAA and who served as its primary administrator from its establishment through her death in 1952. Remembered today primarily as a leader of the Progressive Americanization movement, Kellor's importance in shaping an emerging system of arbitration under the FAA has been largely overlooked. But Kellor played a decisive role in reimagining arbitration as it came to be practiced within the AAA, thereby helping to give concrete, institutional content to the sparse formulations of the federal statute. As she reworked it, arbitration ceased to be a means of assisting the poor, even while it continued to serve other key goals of a paternalistic program of Progressive procedural reform--including, most importantly, the twin aims of Americanization and lawyer-empowerment. Her efforts, moreover, provide important insights into how American lawyers who long prided themselves on their devotion to public adversarial procedure came to embrace private arbitral proceedings.

The Conclusion inquires into the legacy of Progressives' paternalistic conception of arbitration as embodied in the municipal courts and, most importantly, in Kellor's AAA. An appreciation of this history highlights the extent to which the legitimacy of arbitration (and mediation) today continues to depend, to a significant degree, on the legitimacy of the third-party arbitrator's (or mediator's) discretionary exercise of authority. For Progressive lawyers who imagined themselves as a kind of natural elite, justifying the paternalism implicit in such exercises of authority posed little difficulty. But the legal profession, like all of American society, has since been substantially democratized, making such justification much harder today than it was a century ago. Courts may therefore have a greater role to play in supplying the requisite assurances that private arbitration (and mediation) promote public justice.

I. PROGRESSIVE-ERA LAWYERS' PURSUIT OF PROCEDURAL REFORM

The key role of Progressive lawyers in the enactment and implementation of the FAA suggests that, as Hiro Aragaki and Imre Szalai argue, the statute ought to be viewed as an extension of a broader Progressive commitment to procedural reform. (24) Making sense of this commitment requires us to examine the broad range of challenges and opportunities faced by early twentieth-century lawyers.

A. The Enactment of the FAA

But for the support of Progressive lawyers and bar associations, it is highly unlikely that either the New York arbitration statute of 1920 or the FAA modeled on it would have been enacted. Both statutes were the product of a massive educational and lobbying campaign that was initiated by Charles L. Bernheimer, head of the New York Chamber of Commerce's Committee on Arbitration, established (on his urging) in 1911. (25) While Bernheimer and the Chamber were responsible for launching the campaign, it was conducted largely by Progressive lawyer Julius Henry Cohen and the bar associations whose support he helped garner. (26) Cohen brought together Bernheimer and the Chamber's Committee on Arbitration with the New York Bar Association's Committee on the Prevention of Unnecessary Litigation to develop a set of rules and policies for preventing unnecessary litigation--including promoting arbitration. (27) The two organizations successfully lobbied together for the New York arbitration statute. (28) Thereafter, with the assistance of Cohen, who was active in the American Bar Association (ABA), Bernheimer and the Chamber worked with the ABA to press for the enactment of the FAA. (29) In short, as argued in a 1926 publication for which Bernheimer wrote the foreword, the New York Chamber's success in promoting statutory reform was a product, in no small part, of its efforts to "establish[] the most cordial relations with the local bar, and the state and American bar associations." (30) These efforts were reflected in the fact that "[e]very proposed change in statute or court rule or in treatises has had the previous approval of the proper bar associations or of the American Bar Association," such that "the legislative measures were invariably drafted by the bar with the collaboration of the Chamber's committee." (31)

How did Progressive lawyers understand the purposes of the FAA? Working as counsel for the Chamber, Cohen spoke on its behalf, helping to translate the businessmen's goals into the language of the law. As we will see, however, there is good reason to conclude that Cohen's decision to assist the Chamber in its campaign for arbitration stemmed at least as much from his own ideological commitment to promoting Progressive procedural reform as it did from any narrowly professional incentive to satisfy the client. (32) Moreover, lawyers' involvement in promoting the FAA extended far beyond formal legal representation and included the independent efforts of prominent bar associations to promote the statute's enactment. (33) Lawyers thus had their own reasons for pursuing the enactment of the FAA, and there is little basis to conclude that these were the same as those of the elite businessmen of the Chamber. Indeed, the development of vying arbitration organizations--one led by such businessmen and the other by lawyers--strongly suggests that the two groups did not, in fact, share the same understanding of the statute's purposes. (34)

In 1922, just two years after the enactment of the New York arbitration statute, the Arbitration Society of America was established by Moses Grossman, a prominent New York City lawyer, in conjunction with other leaders of the New York and national bars. (35) Grossman had approached Bernheimer a few months earlier to suggest that the two work together in developing the Society, but Bernheimer had virulently refused any such involvement. (36) As Imre Szalai explains, "Bernheimer was deeply concerned that Grossman's plan ... would undermine the Chamber's work and the growth of flexible, less formal, private arbitration tribunals for business interests." (37) Bernheimer's fears were, as it turns out, justified. As developed by Grossman, the Arbitration Society of America brought together not only businessmen, but also judges and lawyers, with an eye towards resolving not only commercial disputes, but "all disputes and differences." (38) Bernheimer and his businessmen colleagues responded to the threat posed by Grossman's Association by creating their own competing organization in 1925: the Arbitration Foundation. (39)

Concerned that the internecine war between them would undermine the cause of arbitration, the two groups eventually agreed to resolve their dispute by arbitration, leading to their merger and the ensuing birth in 1926 of the American Arbitration Association (AAA). (40) But as detailed by Jerold Auerbach, the resulting Association was "an indisputable victory for bench and bar." (41) Indeed, the AAA's first Board of Directors included such Progressive legal luminaries as Roscoe Pound and Charles Evan Hughes. (42) Lawyers, moreover, dominated the new organization both as board members and as arbitrators, and they began regularly to serve as counsel in arbitration proceedings. (43) If we wish to understand the intended purposes of the FAA, it is therefore essential to examine the aspirations of the lawyers whose support was crucial for its enactment and who spearheaded its initial implementation through the founding of what would become the AAA.

B. New Challenges to Lawyers' Longstanding Leadership Role

Progressive-era lawyers fundamentally remade the American legal system, creating the underpinnings of the modern administrative state and refashioning urban justice on the foundations of civil-service bureaucracy and social-scientific expertise. (44) The breadth of these lawyers' interests and activities means that any effort to provide a summary account of their motivations necessarily risks oversimplification. Some generalization is nonetheless possible. Progressive lawyers recognized that the rise of modern, mass society implied the need for new procedural mechanisms, beyond the traditional adversarial trial, to provide ordinary individuals with compensation for harm. Reform was necessary, they believed, to ensure meaningful access to justice--an important value in its own right, but one that also served as a key underpinning of social and political stability and thus national strength. But while advocating for reform, Progressive lawyers also understood that, for a variety of reasons--including the emergence of growing competition from both within and without the legal profession--the effort to develop new procedures had the potential to undermine their own longstanding status and power within American society. For Progressives, the embrace of arbitration and conciliation (which they tended to equate) provided a way to square the circle--to advocate new modes of access to justice (and thereby strengthen the nation), while at the same time empowering themselves.

In the early decades of the twentieth century, lawyers feared that they were on the verge of losing their distinctive power and prominence in American society. Along with the rise of the modern, administrative state and university, there emerged government bureaucrats, social workers, and other new professionals, whom lawyers worried might be better positioned to address a broad range of social needs. (45) The extent of this fear, as well as its role in influencing lawyers to support the New York Chamber's campaign for arbitration (culminating in the FAA), is suggested by a book published by Julius Henry Cohen in 1916--at the same time that he was serving as Bernheimer's main ally in pressing for the New York arbitration statute. Entitled The Law--Business or Profession?, Cohen's book argued that lawyers were facing new kinds of competition in the practice of law and that this, in turn, necessitated a new focus on professional ethics. In his words, "[a] 11 over the country laymen are asking themselves: Why are we not permitted to do things lawyers do ...?" (46) Ensuring sound legal ethics, Cohen suggested, was a way to preserve the lawyers' guild monopoly by demonstrating to an increasingly skeptical public that lawyers viewed law as a public service, rather than a mere trade, and were therefore ideally suited to perform legal functions. In line with this call for lawyers to commit themselves to public service, Cohen himself championed a broad range of causes, seeking to promote rent control and public housing, while also working to establish the Legal Aid Society. (47) So too, he sought to prove his public-minded devotion to the law by displaying a commitment to procedural reform and by campaigning, in particular, for the enactment of arbitration statutes. (48) In all these respects, Cohen was in good company. (49)

In urging the utility of arbitration and conciliation--as deployed especially by the municipal courts that served the urban immigrant poor--many Progressive-era lawyers alluded to the risk of losing their professional monopoly. For example, in 1923, Chief Justice Dempsey of the Municipal Court of Cleveland argued in favor of the conciliation proceedings afforded by newly established municipal courts like his own by noting that "[t]he demand and necessity for simplification of procedure ... is becoming more insistent and it is up to the legal profession to see the handwriting on the wall and take initiative." (50) Similarly, as late as 1935, a Detroit-based lawyer named A. C. Lappin warned that as lawyers failed to develop "a proper system of securing justice," "the public begins to tinker with the judicial machinery, applies common sense, and organizes trade committees, administrative boards and commissions with judicial powers." (51) The end result was that "[i]f we, as lawyers, do not bestir ourselves immediately and lead the movement, the movement will lead us--lead us out of business." (52) Pointing in part to the efforts of the AAA, Lappin then argued that arbitration would enable the lawyer to contribute "to improvement and progress in turning the wheels of justice" and thereby both "satisfy his client and make the most of his career." (53)

In the eyes of Progressive-era lawyers, the threat to their monopoly came not only from outside the legal profession, but also from within it. In the wake of rapid industrialization and extensive immigration, American cities grew enormously from the late nineteenth century onward. In this new urban environment, a new kind of lawyer had emerged. Like the clients they served, these new lawyers were themselves immigrants. Hailing from Southern and Eastern Europe, they seemed alien to the more established, Protestant, and often Republican lawyers, not only in the foreign languages that they spoke, but also in their adherence to Catholicism and Judaism and in their typically Democratic politics. (54) So too, these new lawyers seemed to the older sort to be distastefully aggressive and tradesmen-like in their pursuit of clients. (55) It was in part the fear of losing out to such "ambulance chasers" that led Progressive lawyers to insist on the vital importance of purifying legal ethics. (56)

At the same time, those who belonged to the new breed of lawyers and were therefore anxious about being perceived as "ambulance chasers" had particular reason to highlight their own commitment to professional ethics and procedural reform as a means of distancing themselves from their unwashed brethren. It is thus surely no coincidence that so many of the Progressive-era lawyers who pressed for reform were themselves outsiders, eager to be absorbed into the mainstream, Protestant elite. (57) Two of the lawyers most involved in promoting the FAA and the resulting system of arbitration, Julius Cohen and Moses Grossman, were Jewish. And as we will see, women also played an important role in Progressive legal reform--including, in the case of arbitration, Frances Kellor. (58)

That Progressive-era lawyers were drawn to procedural reform in part because of their fear of losing (or hope of gaining) power does not mean that their interests were exclusively material. As Robert W. Gordon observes, any account of the late nineteenth--and early twentieth-century legal profession that attends only to its material interests ignores the important fact that lawyers understand themselves as "hav[ing] obligations to a universal scheme of order, 'the law,' ... that [is] supposed to regulate social life in accordance with prevailing political conceptions of the good." (59) Indeed, American lawyers long viewed themselves as key civic leaders--an inheritance of a nineteenth-century, civic-republican image of the lawyer as the country's natural elite responsible for undertaking the public-serving acts required to preserve and promote national well-being. (60) But many of the same developments that seemed to undermine lawyers' monopoly also served to reconfigure their role, such that their claim to a position of social and political leadership came to seem increasingly tenuous.

Conceiving of themselves as modern-day Ciceros, antebellum lawyers regularly sought opportunities to undertake highly visible, public oratory, ranging from courtroom jury argument and cross-examination to stump speeches and legislative orations. (61) Adversarial litigation, which provided numerous opportunities to engage in such public (and, at least seemingly, public-serving) oratory, was therefore key to antebellum lawyers' self-conception. (62) But in the late nineteenth and early twentieth centuries, significant socioeconomic and governmental changes altered the nature of legal practice, decreasing the centrality of litigation. The post-bellum period witnessed the emergence of powerful corporate interests, which helped give rise to a new kind of lawyer--one valued more for his specialized expertise and capacity to negotiate than for his ability to undertake courtroom litigation. (63) At the same time, the development of new banking, insurance, and railroad interests led to an expansion of the regulatory state. (64) And much like the corporations they tried to police, administrative agencies sought lawyers who were, in the words of J. Willard Hurst, "[m]aster[s] of [f]act" and "[administrators of [s]ocial [r]elations." (65)

As the significance of litigation declined and lawyers assumed a less visible and dramatic role, their position of social and political leadership--long linked to adversarialism--seemed to be in jeopardy. Here as well, however, the quest for procedural reform appeared to offer a solution. By virtue of their unique expertise in this arena, lawyers pursuing such reform could display their distinctive commitment to and capacity for public service, thus justifying their claim to leadership. As A. C. Lappin reminded his fellow lawyers, "I am convinced that the ordinary man looks to the legal profession, more than to any other factor, for a proper system of securing justice." (66)

But while Progressive-era lawyers had much to gain by advocating for procedural reform of any sort, they had good reason to encourage the adoption, in particular, of both arbitration and conciliation. These two modes of procedure, they believed, would promote the Americanization of the urban immigrant poor--a goal whose vital importance was underscored by Charles Evans Hughes in a speech that he gave to the New York Bar Association in 1918:
   We are fond of speaking of Americanization. If our Bar Association
   could create a sentiment which would demand that in all our cities
   the police courts and minor civil courts should fairly represent
   the Republic as the embodiment of the spirit of justice, our
   problem of Americanization would be more than half solved. A petty
   tyrant in a police court, refusals of a fair hearing in minor civil
   courts, the impatient disregard of an immigrant's ignorance of our
   ways and language, will daily breed Bolshevists who are beyond the
   reach of your appeals. Here is work for lawyers.... The security of
   the Republic will be found in the treatment of the poor and the
   ignorant; in indifference to their misery and helplessness lies
   disaster. (67)


Conciliation and arbitration would make it possible to deliver better, more satisfying justice at the local level and thereby help the country to resist the growing threat of Bolshevism.

C. The Appeal of Arbitration and Conciliation (and Progressive Lawyers' Tendency To Equate the Two)

In developing procedural tools for providing access to justice to (and thereby Americanizing) the urban, immigrant poor, Progressive lawyers were drawn first and foremost to conciliation, as deployed in municipal court branches devoted to "small claims and conciliation." But they also experimented with arbitration.

Conciliation--or, in modern parlance, mediation--is aimed at empowering the parties themselves to achieve a resolution. (68) While approaches to conciliation vary widely, the process is generally one in which a private, third-party mediator encourages the disputants to agree on a mutually acceptable resolution of their dispute. Since the mediator has no formal authority to impose his own judgment on the disputants, conciliation is said to occur only when the disputants themselves freely choose to embrace a given resolution. (69) Advocates of the procedure thus claim that it enhances values of party autonomy, while at the same time enabling the preservation of longstanding and productive relationships. (70)

Arbitration, in contrast, is more akin to a traditional adversarial trial. Although the arbitrator, like the mediator, is a third party appointed by means of private agreement, her role--much like that of a judge--is to reach her own judgment as to the appropriate outcome and to impose it on the parties. While arbitral proceedings are expected to be more streamlined than those of an adversarial trial, they--like litigation, but quite unlike conciliation--are usually structured around the formal presentation of the evidence, often by legal counsel. (71) Proponents of arbitration therefore assert that it offers many of the virtues of trial, including a binding, evidence-based judgment, but with fewer procedural formalities and thus at lower cost. (72)

While conciliation and arbitration are understood today to be clearly distinct procedures, Progressive lawyers tended to equate the two. Reflecting this tendency to associate arbitration with conciliation, the New York County Lawyers Association created a Committee on Arbitration and Conciliation (headed by none other than Moses Grossman himself). (73) And the municipal court established in New York City--commonly described as the "Poor Man's Court" and highly visible because of the city's national prominence--was governed by a procedural code authorizing "a system of arbitration and conciliation between litigants." (74) As observed by Edgar J. Lauer, a judge on the court, he and his colleagues on the bench had "secured a new method of disposing of the great mass of disputes and contentions that ordinarily are brought to court"--namely, "[r]ules providing for conciliation and arbitration." (75)

In the view of Progressive lawyers, these two modes of procedure share certain key features, such that they should be conceived as kindred forms. This was the position taken, for example, by Reginald Heber Smith, a prominent Boston-based lawyer who is widely credited with helping to galvanize the modern legal aid movement. (76) In his seminal 1919 publication Justice and the Poor, (77) Smith recognized that as a technical matter, conciliation and arbitration are distinct. (78) But while acknowledging the formal distinctions, he insisted that as a practical matter, there are important parallels between the two, and, indeed, between these forms of procedure and that of small claims courts as well. Most importantly, all of these procedures aim to eliminate unnecessary technicalities and thereby obviate any need for expensive lawyers. In Smith's words, "small claims courts, conciliation, and arbitration have much in common" in that "[i]n parallel ways they avoid the fundamental difficulty of the expense of counsel by making the employment of attorneys unnecessary." (79) Along similar lines, Lauer argued in 1918 that conciliation and arbitration share a tendency towards procedural simplicity, such that they both permit the "expeditious disposal of litigation" by means of an "inexpensive method." (80) So too, Frances Kellor observed that "[d]uring its evolution through the centuries, arbitration ... had become identified with bargaining processes of mediation and conciliation." (81)

In addition to the cost- and time-savings that they purportedly afford, arbitration and conciliation were said to share other similarities thought to be of use in the broader project of Americanization. According to contemporary lawyers, arbitration and conciliation, unlike adversarial procedure, are able to restore the relationships threatened by the dispute and thus shore up the communal bonds required for national unity and power. As A. C. Lappin claimed, "[W]here litigation engenders rancor and hostility, the spirit of conciliation bows naturally from the closer contacts of arbitration." (82) Along similar lines, Lauer observed that "the contested court trial almost invariably leaves one of the parties dissatisfied," such that "[a]lmost without fail the parties to the controversy become and remain enemies." (83) In contrast, "[t]he result of a conciliation or arbitration proceeding is far different" in that "[a] spirit of good will and friendliness is encouraged in place of a spirit of hostility and enmity." (84) As a consequence of such good will, "a discharged employee may be re-employed or an interrupted business relationship may be resumed." (85) In this way, disruptions harmful to the economy are avoided, along with any risk that disgruntled workers might succumb to leftist radicalization.

But while Progressive lawyers frequently insisted that arbitration and conciliation share a similar propensity for promoting reconciliation, they failed to specify why this was the case. Although conciliation identifies peace-making as its end goal, arbitration--as these lawyers were well aware--culminates in a decision that the disputants are bound to respect and that may therefore displease one, if not both of them. (86)

The assumption that arbitration and conciliation both promote harmony likely lay in some combination of the prevalence (and visibility) of commercial arbitration and, perhaps more importantly, in the institutional structure of the new municipal courts. As Progressive lawyers recognized, commercial arbitration was the most longstanding and well-developed type of arbitration. Smith, for example, observed that "[i]t was frequently employed in an organized way by New York merchants as early as 1768." (87) Deployed by businessmen seeking an end to business disruptions, arbitration thus came to be widely associated with peacemaking. Accordingly, as Smith rightly noted, the New York Chamber of Commerce's Committee on Arbitration lauded itself for its efforts to promote conciliation. (88) In addition, as we will see, the Progressive model of the municipal court relied on a powerful judge who was expected to exercise significant paternalistic power and discretion. In the hands of such a judge, the dividing line between reconciling the litigants (conciliation) and imposing his own view of justice (arbitration) might be difficult to discern. Progressive lawyers expected, in other words, that the poor immigrant disputants served by the municipal courts would tend, by virtue of their relative lack of education, wealth, and power, to respect the judge's authority and thus to reconcile as he dictated. (89) The same assumption of deference on the part of the poor and uneducated likely informed Smith's observation that "[i]n the legal aid societies the principle of arbitration in conjunction with conciliation is daily employed." (90)

As this suggests, one of the main reasons that Progressive lawyers found both conciliation and arbitration so appealing (and tended to associate them with one another) is that these procedures seemed to promise a release from the constraints of excessive legality. From the perspective of Progressive lawyers, the great challenge of their age--a period of tremendous socioeconomic transition in the wake of rapid post-bellum industrialization--was to preserve the country's commitment to the democratic rule of law even while endowing government with the flexibility and expertise required to address the new problems of mass industrial society. (91) As Roscoe Pound and William Howard Taft famously argued, there were reasons to suspect that the traditions of common-law-based adversarialism were poorly suited to the new socioeconomic conditions. (92) Cumbersome and expensive, adversarial litigation was able to identify violations of legal rights, but it could not in any cost-effective way provide meaningful relief for the numerous social ills, such as work-place injury and consumer fraud, that predictably plagued large populations in the new urban, industrial environment. (93)

One solution that Progressives embraced was to turn to social science by channeling certain recurrent types of claims before bodies of specialized experts. Precisely this approach was adopted in the workers' compensation schemes established throughout the United States in the early part of the twentieth century. (94) Similarly, the Progressive subdivision of the new municipal courts into specialized units focused, inter alia, on juvenile justice and crime was conceived as an effort to remedy particular social problems through the deployment of social scientific expertise. (95)

But while Progressive lawyers played a decisive role in developing the apparatus of what came to be called "socialized law," these new administrative schemes of adjudication posed a threat to lawyers' traditional guild monopoly and, at least as importantly, to their longstanding position of social and political authority. To the extent that dispute resolution came to be viewed as hinging on social scientific expertise--a belief reflected in the growing number of non-legal specialists (including doctors, psychologists, and social workers) hired by the new municipal courts (96)--what role would lawyers themselves continue to play in the administration of justice? As John Witt shows, one solution-developed by Pound himself, in alliance with Melvin Belli and the plaintiffs' injury bar--was to settle cases in certain areas of tort law (including, notably, automobile injury suits) in accordance with what was essentially a privatized administrative scheme for assigning liability and damages. (97) Although this approach enabled lawyers to continue earning significant profits, it transformed their role into a largely mechanical, discretion-free exercise, involving the application of pre-established valuations and rules of thumb. Both conciliation and arbitration, in contrast, allowed lawyers to focus on actively promoting substantive justice, rather than mechanistically applying administrative guidelines. And while administrative approaches appealed to social scientific expertise as their underlying source of legitimacy, conciliation and arbitration were understood to be grounded--in ways that Progressives themselves failed clearly to theorize--on the discretion (and assumed wisdom) of the legal elites deploying them. Indeed, perhaps nothing more clearly underscores the deep-rooted paternalism of the Progressives' conception of arbitration than their tendency to associate it with conciliation--a practice that, as we will see, a previous generation of Americans had dismissed as suited only to hierarchical, Old World societies.

II. COURTS OF "SMALL CLAIMS AND CONCILIATION" AND THE PROGRESSIVE CAMPAIGN TO AMERICANIZE THE URBAN, IMMIGRANT POOR

Although Progressive lawyers emphasized the utility of both arbitration and conciliation in addressing the problems of the poor and experimented to some degree with both procedures, it was conciliation--as deployed in the small claims and conciliation branches of the new municipal courts--that ended up becoming the centerpiece of their program for urban civil justice. Given the centrality of the small claims and conciliation courts to the Progressive vision of civil justice, as well as Progressives' tendency to depict arbitration and conciliation as kindred forms, any attempt to make sense of the Progressive conception of arbitration (and its relation to broader procedural reform goals) ought to take some account of these courts. Put differently, one way to understand what Progressives hoped might be achieved through arbitration is to explore their aspirations for the small claims and conciliation courts.

A. The European Model of the Conciliation Court and the (Largely) Failed Nineteenth-Century American Efforts To Transplant It

The Progressive push to develop municipal courts was part of a broader effort, associated first and foremost with Republicans, to weed out the Democratic party machines that had long dominated major urban areas. (98) Although the municipal courts varied in structure and function, they shared a common focus on providing access to justice for urban dwellers, many of whom were poor immigrants. From the perspective of Progressive reformers, winning the hearts and minds of these men and women was a way not only to promote Republican victory at the ballot box, but also to counter dangerous tendencies towards radicalization that were reflected in the prevalence of labor mobilization and strike activity during the late nineteenth and early twentieth centuries. (99) Reformers thus devoted particular attention to establishing "small claims and conciliation" branches within the municipal courts. Expected to specialize in the minor matters thought to typify the complaints of the urban poor, (100) the small claims and conciliation courts would deploy conciliation whenever possible as a means of ensuring rapid, cheap, and possibly lawyer-free dispute resolution. (101)

It is at first glance surprising that Progressive lawyers would encourage the development of a mode of procedure intended to facilitate the ability to proceed pro se, in that this would seem to threaten their own professional interests. In reality, however, elite lawyers were only too happy to undermine the client base of the "ambulance chasers," who tended to monopolize representation of the urban poor. (102) As explained in the annual report of the ABA's Committee on Small Claims and Conciliation Procedure in 1924, "[T]he better members of our profession have no ardent desire to try $25 cases in a small claims court and ... it is the less desirable fraction of the bar that the small claims courts want to keep out...." (103) But while elite Progressive lawyers were perfectly willing to do away with lawyers as counsel to the disputants in such courts, they assumed that lawyers (of their own ilk) would serve as judges. (104)

In devising courts of small claims and conciliation, Progressive lawyers drew on the European model of the conciliation court--an ideal type that, as I have argued elsewhere, was devised by Jeremy Bentham based on the French bureaux de conciliation. (105) Created by the French revolutionaries in 1790, these institutions were shortly thereafter adopted by other continental European countries and their colonies, including Spain, Prussia, and Denmark. (106) As depicted by Bentham, the defining feature of these courts was that they relied on lay judges, lacking legal training, who were elected by the local community because of their reputation for wisdom and common sense. Such judges were expected to deploy their high standing within the community, rather than legal knowledge, to mediate intra-communal disputes in private, lawyer-free proceedings. (107)

Bentham ultimately concluded that conciliation courts were fundamentally paternalistic institutions and therefore ill-suited to any society committed to principles of democratic governance. (108) But despite his own concerns, Bentham's ideal type of the "conciliation court" was embraced by others, who began using the term to refer not only to bureaux de conciliation (and their counterparts outside of France), but also to other types of courts. These included, most especially, the European labor courts, modeled on the French conseils de prud'hommes, in which lay representatives of capital and labor, elected by their respective constituents, sat together to resolve employment disputes. (109) While the various institutions that came within the broader rubric of "conciliation court" differed in significant respects, they shared certain core characteristics. These included, most importantly, a reliance on lay leaders, who were selected because of their standing within the relevant community, to resolve disputes on the basis of informal, conciliation-promoting procedures. And as I have argued elsewhere, these shared characteristics derived from a centuries-old European tradition of corporatism pursuant to which the group, rather than the individual, was the focal point of the law. (110)

In urging the adoption of "courts of small claims and conciliation," Progressive lawyers frequently pointed to the European model of the conciliation court. For example, Reginald Heber Smith observed that "[i]n Norway and Denmark courts of conciliation have existed since 1795" and that "in Norway 75 per cent and in Denmark 90 per cent of all litigation is peaceably adjusted through judicial conciliation." (111) He further remarked that "[i]n the industrial [or labor] courts of France, Switzerland, and Germany which have jurisdiction over disputes between employers and employees, conciliation plays a leading part." (112) Similarly, in a 1917 article concerning courts of small claims and conciliation, William R. Vance, then dean of the University of Minnesota Law School, commented that "[b]y royal edicts of 1795 and 1797 there were established in Denmark and Norway ... courts of conciliation which have proved so highly successful in affording inexpensive and speedy justice to the poorer class of suitors, that their fame has spread throughout the world." (113) Moreover, "[i]n France, at the time of the Revolution, conciliation powers were given to justices of the peace [heading the bureaux de conciliation], with the result that their courts have continued for over a hundred years to dispose annually of huge numbers of small cases by bringing the parties to an amicable understanding." (114)

In seeking to develop courts of small claims and conciliation, inspired by the European model of the conciliation court, Progressives operated within a remarkably long tradition of American efforts to transplant this model to the New World. Indeed, as I have shown elsewhere, Americans engaged in multiple debates throughout the nineteenth century concerning the desirability of such institutions. (115) But despite these pervasive debates (several of which resulted in the enactment of state constitutional provisions authorizing legislatures to create conciliation courts), these institutions did not meaningfully take root in American soil. (116) While the reasons for these repeated failures are varied and complex, the most important factor was that Americans concluded that conciliation courts were grounded on a corporatist tradition largely absent from the United States. In a country that prided itself on its commitment to individual equality, it was, in short, far from clear where to ground (and how to justify) the conciliation judge's extralegal, discretionary authority. Accordingly, nineteenth-century (white) Americans ultimately rejected such courts as suited only to hierarchical and despotic European nations (and to African-Americans, imagined to be primitive and deferential). (117)

In arguing for the establishment of courts of small claims and conciliation, Progressives often acknowledged the largely failed nineteenth-century efforts to establish such institutions in the United States. Vance, for example, noted that in 1846, the New York Constitution was revised to include a provision "authorizing the legislature to establish courts of conciliation," but "[t]he New York legislature seems never to have seriously considered exercising the power thus given." (118) And while "[constitutional provisions similar to that of 1846 in New York were adopted" in several other states, these resulted at most in the enactment of statutes "of limited scope and doubtful usefulness." (119) Similarly, Smith remarked that "[i]n the reform wave of 1846 to 1852 ... provisions respecting conciliation were inserted in six of the new constitutions which were adopted during that period," but in all these jurisdictions, "the plan met with ... failure." (120) Perhaps because of these failures, most Progressives arguing for the establishment of courts of small claims and conciliation ultimately did not dwell much on history. (121) Instead, they simply underscored the pressing present-day need for such institutions, pointing to the threat to core American values posed by a growing mass of unassimilated urban immigrants. In a move redolent with (unrecognized) irony, they sought to deploy for purposes of promoting Americanization an institution rejected by their nineteenth-century predecessors as fundamentally un-American.

Along these lines, Smith argued in favor of small claims and conciliation courts by noting that one "accruing advantage of having the parties brought into direct contact with the judge" is that this "mak[es] justice seem a more real thing to the average man"--a development that would, in turn, result in "beneficial effects on good citizenship and loyalty." (122) The ABA's Committee on Small Claims and Conciliation Procedure made much the same point. The Committee's 1924 report includes a section entitled "Genuine 'Americanization.'" (123) As this title suggests, the Committee believed that the utility of courts of small claims and conciliation was not simply that "they do justice in a class of cases where justice could not be done by the machinery formerly in existence." (124) Of at least equal importance was that these courts demonstrated American principles of equal justice under the law, thus winning the hearts and minds of those urban immigrant dwellers at risk of radicalization. In the words of the report, "[b]ecause they secure justice to the humble citizen with his small case they demonstrate the integrity of our institutions and they afford a practical object lesson in real, as distinguished from talky-talk, Americanization." (125)
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Title Annotation:Introduction through II. Courts of "Small Claims and Conciliation" A. The European Model of the Conciliation Court, p. 2940-2966; Arbitration, Transparency, and Privatization: Contextualizing and Analyzing Recent Developments in U.S. Arbitration Regimes
Author:Kessler, Amalia D.
Publication:Yale Law Journal
Date:Jun 1, 2015
Words:8267
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