During the American invasions of
I wonder whether a similar, less-noticed substitution is occurring within the ranks of the “Third Branch,” the judiciary. Americans still worry about the neutrality and impartiality of their judges. Recent events—the Supreme Court’s decision in Bush v. Gore, Justice Scalia’s refusal to recuse himself in Cheney v. U. S. District Court for the District of Columbia, the nominations of John Roberts, Harriet Miers and Samuel Alito, judicial review of the military tribunals established to try those imprisoned at Guantanamo Bay—have focused national and even international attention on the importance of judicial independence in the United States. Are our judges entirely independent and impartial? Of course not. But in a signficant number of cases, the judicial functions of deciding cases and facilitating settlement are being performed by people who could be viewed as even less likely to be independent and impartial. These are what I call “embedded neutrals”—e.g., administrative judges who are employees or contractors of the very agencies whose policies and practices are being challenged by citizens; arbitrators who serve because the repeat players (i.e., employers, retailers, banks, credit card companies, manufacturers) have selected their own trade associations or particular ADR organizations for inclusion in boilerplate contracts; and mediators admitted to agencies’ panels because they possess the particular experience and/or knowledge that the agencies value. As ADR has been institutionalized–and now just as much a lucrative private business as a public service or avocation–it is easy to imagine the potentially corrosive influence of money and access on impartiality, or at least on the maintenance of a reasonable appearance of impartiality.
Is this worth worrying about? Is it worth doing anything about? Or can we just trust that the marketplace will take care of this potential problem?