One can easily see the relevance of public choice theory to neoliberal conceptualizations of social organization. As Edward Rubin explains:
Public choice theory treats legislators and the chief executive as reelection maximizers. They are perfectly rational as individuals, since reelection maximizes each individual’s self-interest, but the behavior of the institutions that they comprise is determined simply by the sum of their uncoordinated individual efforts. The institution, therefore, has no capacity to pursue public policy goals in a rational manner; in fact, it has no collective purpose whatsoever.
Edward L. Rubin, The New Legal Process, the Synthesis of Discourse, and the Microanalysis of Institutions, 109 Harv. L. Rev. 1393, 1399 (1996). For a general analysis of law and economics’ relation to neoliberalism, see Ugo Mattei & Laura Nader, Plunder: When the Rule of Law is Illegal 88-100 (2008).
Cf. Nikolas Rose, Inventing Our Selves: Psychology, Power, and Personhood 153 (1996) (“In the writings of ‘neoliberals’ like Hayek ... well-being of both political and social existence is to be ensured ... through the ‘enterprising’ activities and choices of autonomous entities - businesses, organizations, persons - each striving to maximize its own advantage by inventing and promoting new projects by means of individual and local calculations of strategies and tactics, costs and benefits.”).
Hayek, supra note 37, at 60 (emphasis added).
Ilana Gershon, Neoliberal Agency, Current Anthropology (forthcoming 2010).
See, e.g., Howard Gadlin, Bargaining in the Shadow of Management: Integrated Conflict Management Systems, in The Handbook of Dispute Resolution, supra note 3, at 371 (“The core idea of [dispute systems design] is to apply the techniques and sensibility of interest-based negotiation to the identification, prevention, management, and resolution of conflict within organizations.”).
Ury et al., supra note 1, at 42.
Costantino & Merchant, supra note 1, at 49-54. In addition, they recommend providing “low-cost rights and power back-ups” as supplements to interest-based processes. Id. at 60 (building on Ury et al., supra note 1, at 52-60). See also Cathy A. Costantino, Using Interest-Based Techniques to Design Conflict Management Systems, 12 Negot. J. 207 (1996).
Robinson et al., supra note 2, at 360 (they refer to their method of DSD as Dynamic Adaptive Dispute Systems). See also Allan J. Stitt, Alternative Dispute Resolution for Organizations: How to Design a System for Effective Conflict Resolution 19 (1998) (“Generally, disputes are resolved more effectively and satisfactorily for disputants if they use an interest-based approach to the resolution of conflict.”).
Franck, supra note 4, at 182, 224-27.
The “orange story” likely owes its popularity to Roger Fisher, William Ury & Bruce Patton, Getting to Yes: Negotiating Agreement Without Giving In 59 (1981). On the origins of the orange story, see Deborah M. Kolb, The Love for Three Oranges Or: What Did We Miss About Ms. Follett in the Library?, 11 Negot. J. 339, 339 (1995).
For an overview of techniques (adding issues, subtracting issues, substituting issues, and logrolling) designed to enhance the value of negotiated agreements for all parties, see Russell Korobkin, Negotiation Theory and Strategy 129-34 (2002).
See, e.g., Robert M. Ackerman, Disputing Together: Conflict Resolution and the Search for Community, 18 Ohio St. J. on Disp. Resol. 27, 79-80 (2002) (“The problem with [the orange] allegory is that it over promises the benefits of mediation, creating in the parties unrealistic expectations regarding the mediator’s ‘magic’ and unrealistic assumptions regarding their own need to compromise .... Having touted an interest-based process spawning win-win solutions, we [mediators] are sometimes stymied when the parties and their counsel expect us to deliver a solution that requires no compromise on their part.”).
See generally Mark A. Moberg, Class Resistance and Class Hegemony: From Conflict to Co-optation in the Citrus Industry in Belize, 29 Ethnology 189 (1990).
See, e.g., David A. Lax & James K. Sebenius, The Manager as Negotiator: Bargaining for Cooperation and Competitive Gain 93-94 (1986) (extending the lessons of the orange story to a complex dispute between a utility company and conservationists over the building of a hydro-power dam).
Here is how Gabriella Blum and Robert Mnookin explain it: “through the process of negotiation people’s priorities and interests can sometimes change and evolve” but “ex ante, people may overlook or underestimate this possibility.” Gabriella Blum & Robert H. Mnookin, When Not to Negotiate, in The Negotiator’s Fieldbook: The Desk Reference for the Experienced Negotiator 101, 108 (Andrea Kupfer Schneider & Christopher Honeyman eds., 2006).
Friedrich A. Hayek, Individualism: True and False, in The Essence of Hayek, supra note 23, at 131, 140.
Indeed, the very plausibility of achieving joint gains often depends on the willingness of individuals to transform the ends they hold prior to a conflict into interests that hold value to others and therefore serve a mutually advantageous good. Consider a dispute about proposed economic development in a blighted city. A dispute systems designer will likely begin by inviting a range of “stakeholders” - the city, the development corporation, the environmental group, various citizens’ groups - to participate in a series of facilitated negotiations about how their joint resources should be used. To produce value across divergent positions, however, these entities must be willing to engage as buyers and sellers in a horizontal market, dealing in commodities that are cognizable on that market. To that end, for example, residents could become willing to translate their desires to preserve their homes into interests in relocation, and environmental activists could become willing to translate their desires to preserve ecological integrity into a risk assessment pegged to a monetary amount designated for remediation if ecological damage ensues. If, instead, these actors insist their welfare flows from the enforcement of other incommensurable ideals (for example, a long-term view of ecosystem preservation that resists commodification via an assessment of risk), then gains from trade become far more difficult to envision. Proponents of neoliberalism offer the market as the solution to this problem of disparate valuation. As one of Hayek’s students explains, “the free market, in which the price mechanism is left alone to work itself out, means that in this market every person is allowed to act in accordance with his or her own standard of values” rather than values imposed by somebody else. Chiaki Nishiyama, Introduction to The Essence of Hayek, supra note 23, at xxvii, lv. That said, to participate within existing markets, one’s standard of values must be cognizable and value-able to others. Elsewhere, I have argued that IBDR techniques aim normatively to render individuals capable and desirous of making their ends commensurable, fungible, and thus subject to reciprocal trades in light of the extant valuations of others. Amy J. Cohen, Negotiation, Meet New Governance: Interests, Skills, and Selves, 33 Law & Soc. Inquiry 503, 522-27 (2008).
For a review of some of this literature, see Kevin Avruch, Toward an Expanded “Canon” of Negotiation Theory: Identity, Ideological, and Values-Based Conflict and the Need for a New Heuristic, 89 Marq. L. Rev. 567 (2006). Avruch supplements interest-based negotiation’s “canonical” heuristic of a buyer and seller with “second-generation” negotiation models that consider values, ideologies, beliefs, and basic human needs (needs that are putatively universal and therefore nonfungible). Id. at 568, 572-78. Building on these second-generation models, he proposes an alternative, but purposefully individuated negotiation heuristic: two married spouses of different faiths that must negotiate their spiritual divide. Id. at 578-80.
It is worth observing that Hayek envisions individuals as “very irrational and fallible being[s], whose individual errors are corrected only in the course of a social process.” Hayek, supra note 56, at 136. For Hayek, that individuals cannot possess more than partial reason or knowledge forms the basis of his argument that the market (rather than “rational” planners) should organize society because the market allows man to “be guided in his actions by those immediate consequences which he can know and care for.” Id. at 139. And by taking “part in a process more complex and extended than he could comprehend,” man can potentially be “made to contribute ‘to ends which [are] no part of his purpose.”’ Id. at 140.
Consider, on this point, Nancy Welsh’s work on procedural fairness. Welsh reports that people in a negotiation “who believe that they have been treated in a procedurally fair manner are more likely to conclude that the resulting outcome is substantively fair, even if it is unfavorable [to their distributive interests].” Nancy A. Welsh, Perceptions of Fairness, in The Negotiator’s Fieldbook, supra note 55, at 165, 171. Yet in negotiations between parties of unequal status, “the lower-status negotiator is more likely to be satisfied with an unfavorable outcome, as long as she is treated in a procedurally just manner,” whereas the higher-status negotiator is “less likely to allow process fairness to soften the blow of an unfavorable outcome.” Id. Perhaps the lower-status people in Welsh’s dataset placed greater value on dignitary goods like procedural fairness because they were less likely than higher-status people routinely to receive them - a valuation that may not serve their distributional good as they negotiate directly with powerful institutional and corporate actors.
See, e.g., Lawrence E. Susskind, Consensus Building, Public Dispute Resolution, and Social Justice, 35 Fordham Urb. L.J. 185, 193-94 (2008).
Owen Fiss made this point in his classic critique of ADR. He argued that ADR’s practices of representation and consent overlook the fact that “many parties are not individuals but rather organizations or groups.” Owen M. Fiss, Against Settlement, 93 Yale L.J. 1073, 1078 (1984). Cf. Robert M. Cover, Owen Fiss & Judith Resnik, Procedure viii (1988) (questioning the sensibility of “traditions of individuality and autonomy” that shape how we understand parties to legal disputes “in a world full of injuries suffered by groups - users of desecrated environments, consumers of illegally priced goods, patients confined to hospitals that provide no care”). Fiss in fact argued that “what is needed to protect the individual is the establishment of power centers equal in strength and equal in resources to” corporations and state bureaucracies. Owen M. Fiss, Foreword: The Forms of Justice, 93 Harv. L. Rev. 1, 43-44 (1979).
See infra Part IV.
For one explicit application of Hayekian ideas to the design and practice of dispute resolution, see Arthur B. Pearlstein, The Justice Bazaar: Dispute Resolution through Emergent Private Ordering as a Superior Alternative to Authoritarian Court Bureaucracy, 22 Ohio St. J. on Disp. Resol. 739 (2007).
See Stitt, supra note 47, at 11-12 (arguing that DSD can reduce the time and cost involved in resolving disputes and improve relationships and party satisfaction with outcomes, as well as produce outcomes “that support the organization’s goals”); Franck, supra note 4, at 179 (arguing that the benefits of DSD include “(1) less lost time and money to resolve a conflict, (2) fewer missed commercial opportunities, and (3) fewer outbreaks of violence and decreased resort to power struggles. Meanwhile, DSD can enhance communication and increase party satisfaction with the process and result”); Robinson et al., supra note 2, at 350 (arguing that DSD can achieve “reduced transaction costs; higher performance and productivity; greater satisfaction with outcomes; better morale from improved workplace communications and relationships; and more durable resolutions of conflict”). See also Costantino & Merchant, supra note 1, at 171-73 (proposing to measure dispute processing systems by efficiency (or the change in cost and time to resolve conflict); party satisfaction (with the process, relationships, and outcome); and effectiveness (including the number of disputes resolved, the durability of resolutions, and changes in “the image or perception of the organization in the marketplace or in the workplace”)); Slaikeu & Hasson, supra note 3, at 34-39 (evaluating different approaches to dispute systems design by various measures of cost-effectiveness); Ury et al., supra note 1, at 31, 80 (proposing to evaluate dispute processing systems by their ability to lower transaction costs, increase party satisfaction with outcomes, improve relationships, and reduce the number of disputes).
Mattei & Nader, supra note 40, at 79. Gadlin similarly asserts that “the conceptual framework of dispute systems design is formed almost exclusively around the concerns of managers: cutting costs, enhancing productivity, and containing conflict.” Gadlin, supra note 44, at 376. He argues further that the proliferation of workplace DSD encourages workers to govern themselves voluntarily according to the interests of management. Id. at 380. See also Lipsky et al., supra note 3, at 164 (describing forms of worker disempowerment that are far less subtle; for example, that the dispute resolution community has reached no consensus on whether “fair” workplace DSD can require workers to waive rights, including the right to file suit against an employer in court).
See generally Silbey & Sarat, supra note 11, at 450-56; Harrington & Merry, supra note 11, at 715-16; Carrie Menkel-Meadow, Pursuing Settlement in an Adversary Culture: A Tale of Innovation Co-Opted or “The Law of ADR,” 19 Fla. St. U. L. Rev. 1, 6-8 (1991).
Several scholars have made this argument in various forms. See, e.g., Deborah R. Hensler, Our Courts, Ourselves: How the Alternative Dispute Resolution Movement is Re-Shaping Our Legal System, 108 Penn St. L. Rev. 165, 192 (2003); Menkel-Meadow, supra note 67, at 1-3, 6; Nancy A. Welsh, The Place of Court-Connected Mediation in a Democratic Justice System, 5 Cardozo J. Conflict Resol. 117, 138-39 (2004).
See, e.g., Gadlin, supra note 44, at 378 (“In the early days of introducing ADR programs into organizations ... the word alternative was key to their functioning and to whatever moral sway and influence they had .... These programs were concerned with procedural justice and fairness in the organization, not performance, productivity, and profits.”).
Harvey, supra note 20, at 166-67 (describing how, in order to function, capitalism and coherent markets depend on fictitious descriptions of labor, land, and money as commodities).
Dalton Conley, Network Nation, N.Y. Times Mag., June 22, 2008, at 17.
See, e.g., Carrie Menkel-Meadow, Roots and Inspirations: A Brief History of the Foundations of Dispute Resolution, in The Handbook of Dispute Resolution, supra note 3, at 13, 23. I suspect, moreover, that dispute resolution practitioners will increasingly find opportunities to design horizontal dispute processing systems that involve matters of collective social concern. Along precisely the lines Conley suggests, the emergent field of new governance recommends transforming government into a series of networked relations among public and private actors that surmount both the free-enterprise logic of the neoliberal market and the command-and-control logic of the welfare state. To address regulatory problems in areas like labor and employment, health care, education, and the environment, new governance scholars aim to design institutions that invite stakeholders to articulate their needs and interests and to deliberate about solutions to meet those needs in a participatory, inclusive, efficient, and collaborative fashion - aided by state supervision, but not direct state control. For a detailed overview of new governance projects and their relation to IBDR, see generally Cohen, supra note 57.
Jean Comaroff & John L. Comaroff, Millennial Capitalism: First Thoughts on a Second Coming, in Millennial Capitalism and the Culture of neoliberalism 1, 39 (Jean Comaroff & John L. Comaroff eds., 2001) (explaining how in “situations in which the world is constructed out of apparently irreducible difference,” the application of a putatively neutral medium like law “forges the impression of consonance amidst contrast, of the existence of universal standards that, like money, facilitate the negotiation of incommensurables across otherwise intransitive boundaries”).
Lax & Sebenius, supra note 54, at 90; see also Robert H. Mnookin et al., Beyond Winning: Negotiating to Create Value in Deals and Disputes 14-17 (2000) (describing the role that differences in resources, valuations, forecasts, and preferences about risks and time can play in producing gains from trade).
Here is how Hayek explains this sleight of hand:
[O]nly because men are in fact unequal can we treat them equally. If all men were completely equal in their gifts and inclinations, we should have to treat them differently in order to achieve any sort of social organization. Fortunately, they are not equal; and it is only owing to this that ... after creating formal equality of the rules applying in the same manner to all, we can leave each individual to find his own level.
Hayek, supra note 56, at 141.
Isabelle R. Gunning, Diversity Issues in Mediation: Controlling Negative Cultural Myths, 1995 J. Disp. Resol. 55 (1995).
Id. at 93.
See supra note 57.
See generally Lax & Sebenius, supra note 54; Mnookin et al., supra note 75, at 11-43.
Lax and Sebenius explore how value creating and value claiming are “linked parts of negotiation.” But, for them, these tasks are conceptually distinct. Lax & Sebenius, supra note 54, at 33 (emphasis added). They write: “No matter how much creative problem solving enlarges the pie, it must still be divided; value that has been created must be claimed. And, if the pie is not enlarged, there will be less to divide; there is more value to be claimed if one has helped create it first.” Id. See also Mnookin et al., supra note 75, at 27 (building on Lax and Sebenius to explore how to “create value while minimizing the risks of exploitation in the distributive aspects of a negotiation”).
Cf. McCluskey, supra note 21, at 788-89. McCluskey explains that:
The preoccupation with extracting redistribution from efficiency grows out of neoclassical economics’ early-twentieth-century quest for a formal and objective tool for measuring societal well-being that could establish economic policy analysis as a science.... From the start, non-neoclassical economists have questioned the fundamental efficiency/equity division as false, and have explained, “[T]he whole point is that global welfare maximization is meaningless.” Nonetheless, most mainstream economics and policy analysis continues to take this equity/efficiency distinction on faith and to focus instead on dissecting the relationship between the two separated goals.
Id. (citation omitted).
Negotiation scholars often define value creation as a process of creating joint gains in relation to “a different but still mutually advantageous possible agreement.” Korobkin, supra note 50, at 126. See also Gerald B. Wetlaufer, The Limits of Integrative Bargaining, 85 Geo. L.J. 369, 374-75 (1996).
David Szablowski, Transnational Law and Local Struggles: Mining, Communities and the World Bank 209 (2007).
Id. at 215-16.
See, e.g., Shariff supra note 1, at 146 n.40 (reviewing literature that explores how adding issues to a negotiation expands the possibilities for value-creating trades).
Gregg P. Macey & Lawrence Susskind, The Consensus Building Inst., Using Dispute Resolution Techniques to Address Environmental Justice Concerns: Case Studies 60, 74 (Jennifer Thomas-Larmer ed., 2003), available at http:// www.epa.gov/compliance/resources/publications/ej/cbi-case-study-report.pdf.
Angela Harris, Margaretta Lin & Jeff Selbin, From “The Art of War” to “Being Peace”: Mindfulness and Community Lawyering in a Neoliberal Age, 95 Cal. L. Rev. 2073, 2107 (2007).
See generally Wendy Brown, Neoliberalism and the End of Liberal Democracy, in Edgework: Critical Essays on Knowledge and Politics 59 (2005). See also Annecoos Wiersema, A Train without Tracks: Rethinking the Place of Law and Goals in Environmental and Natural Resources Law, 38 Envtl L. 1239 (2008) (critically examining whether collaborative public-private negotiations are promoting long-term preservation of the Chesapeake Bay).
See Brown, supra note 90, at 59. Consider, on this point, the strident argument made by economist Karl Polanyi (a contemporary of Hayek and an important defender of planning):
To allow the market mechanism to be sole director of the fate of human beings and their natural environment, indeed, even of the amount and use of purchasing power, would result in the demolition of society. For the alleged commodity ‘labour power’ cannot be shoved about, used indiscriminately, or even left unused, without affecting also the human individual who happens to be the bearer of this peculiar commodity. In disposing of man’s labour power the system would, incidentally, dispose of the physical, psychological, and moral entity ‘man’ attached to that tag.
Karl Polanyi, The Great Transformation 73 (1954), quoted in Harvey, supra note 20, at 167.
For example, Larry Susskind has consistently argued that conveners of consensual dispute management processes in public policy contexts should consider interests on behalf of a social good (even when they are not represented by anyone at the negotiating table). See, e.g., Lawrence E. Susskind, Consensus Building and ADR: Why They Are Not the Same Thing, in The Handbook of Dispute Resolution, supra note 3, at 358, 368-69.
Brown, supra note 90, at 59.
By suggesting that we look to legal frameworks to explore various forms of social organization, I do not mean to suggest that DSD should necessarily, or exclusively, supplement interest-based methods of dispute resolution with the deployment of legal rights. This is the case for at least two reasons. The first is straightforward and contingent. Consider, for example, Robinson, Pearlstein, and Mayer’s recent efforts to assist the Federal Mediation and Conciliation Service in developing a “new paradigm for conflict systems design” to manage labor-management disputes in unionized workplace settings. Robinson et al., supra note 2, at 342. Although they propose a flexible and adaptive interest-based system, they simultaneously insist that DSD “must not be allowed to undermine any aspect of an existing collective bargaining agreement or any other workplace rights created by the Constitution or statute.” Id. at 348, 374. This safeguard, however, is only as compelling as our existing labor rights and entitlements in fact are. The second reason is profound and enduring, and, as such, I can barely scratch its surface. The challenges I have directed to dispute resolution (a field often considered “outside” of law) are challenges that critical legal scholars have, for decades, directed at law - for example, that multiple forms of social organization are cognizable before the law only as legal “persons” with rights, and that rights themselves are falsely fetishized “as some kind of magical power that transforms social inequalities by refashioning them as equal legal relations. Yet the social inequalities remain.” Susan Marks, International Judicial Activism and the Commodity-Form Theory of International Law, 18 Eur. J. Int’l L. 199, 207 (2007). For an explication of this Marxist as well as other forms of rights critique, see Duncan Kennedy, The Critique of Rights in Critical Legal Studies, in Left Legalism/Left Critique (Wendy Brown & Janet Halley eds., 2002). Cf. Comaroff & Comaroff, supra note 74, at 39-40. For a practical application of the idea that equal legal relations is too general a principle to address systemic inequalities within institutions, see Susan Sturm, Second Generation Employment Discrimination: A Structural Approach, 101 Colum. L. Rev. 451 (2001). Beyond these minimal observations, however, I leave untouched any implications for law, perhaps our most ambitious form of dispute systems design.
Macey and Susskind, for example, caution that “[a]s conflict resolution techniques gain greater acceptance by government agencies and the private sector, residents [facing environmental hazards] may be subjected to interpretations of ‘consensus-building,’ ‘mutual gains,’ ‘win-win,’ and other models of dispute resolution that are elegant in theory but potentially devastating in practice.” Macey & Susskind, supra note 88, at 13.
Susan Sturm, The Architecture of Inclusion: Advancing Workplace Equity in Higher Education, 29 Harv. J.L. & Gender 247, 272 (2006).
Susan Sturm & Howard Gadlin, Conflict Resolution and Systemic Change, 2007 J. Disp. Resol. 1 (2007).
Id. at 8, 18-19.
Id. at 7. Sturm and Gadlin also recommend ways to enlist participants in systemic analyses of their own disputes. See id. at 43-47.
Id. at 22-38.
Harris et al., supra note 89, at 2076. Their article is not addressed to the question of dispute management, but rather to the question of community lawyering in struggles for economic justice. Specifically, Harris, Lin, and Selbin examine the potential of “mindfulness” to bridge relations among individual lawyers, communities, and other public and private actors under conditions of inequality. Id.
Id. at 2109-11.
Macey & Susskind, supra note 88, at 20, 29, 69.
Id. at 43.
Id. at 47, 62-63.
See generally Szablowski, supra note 84, at 163-236. For other scholarly efforts on which we could build, see Shariff, supra note 1, at 136-37 (calling for designers to evolve a “level of analysis between the individual and society at large” that includes attention to how individual behavior “is shaped significantly by the institutional structures in which actors are embedded”); Carrie Menkel-Meadow, The Lawyer’s Role(s) in Deliberative Democracy, 5 Nev. L.J. 347, 365-66 (2004-05) (proposing a grid to conceptualize social problem-solving that captures multiple forms of discourse and social organization).