Resnik and Curtis on the Public's Role in Court-Based Processes

From 'Rites' to 'Rights' of Audience: The Utilities and Contingencies of the Public's Role in Court-Based Processes is a chapter by Judith Resnik and Dennis E. Curtis, both of Yale Law School. It appears in REPRESENTATIONS OF JUSTICE, Antoine Masson and Kevin O'Connor, eds., (Peter Lang Publishing, 2007). Here's the abstract:

This chapter, in the book Representations of Justice, examines the history of public displays of the power of rulers, who relied on the open rituals of judgment and punishment to make and to maintain law and order. We map how the ritualistic performance for the public became a right of the public to participate in and to observe adjudication. Using the United States as an example, we show why courts can serve as rich sources of information about legal, political, and social conflict. Yet, despite new technologies facilitating access, information about conflicts and their resolution is being limited through laws, doctrines, and practices that devolve court authority to low-visibility tribunals inside administrative agencies, outsource decision making to private providers, and reformulate court-based processes to promote private management and settlement in lieu of public adjudication.

These new processes reveal the contingency of the public's role and require analyses of the premises for public rights of audience. The argument we make for public processes relies not only on courts' capacity to provide insights into the uses of both public and private power but also on how court-based public practices generate and reflect democratic norms. Open courts welcome popular input into the production of norms. Further, they provide an opportunity to observe the ordinary, bureaucratic imposition of authority. Whether expressing and creating commitments to human dignity, fair treatment of equals, and government accountability or demonstrating aggressive retribution that can foster sectarian strife, the display of conflicts (with its attendant cross-claims, fights over facts, decisions, and sanctions) enables contestation, change, or reaffirmation of the practices and rules shown. Open courts enact commitments to living in a social order in which disputes are neither the private and exclusive domain of those in disagreement nor owned by governmental authorities holding the power to impose law.