The Value of Litigation: Against Settlement and Mediation

Posted by Alan Childress

Back when he was just a pup of a newsman on MSNBC and did hilarious impressions of Reagan and others on Leno, Brian Williams predicted that Bob Dole could not beat Clinton:  to too many young people, Dole was that guy standing on his front porch  — fist clinched — yelling at you, “Get off my lawwwwnn!”

Jeff Lipshaw’s rant on iPods and ambient noise in subways worries me that he has reached that stage in life where he is becoming That Guy.  It is worse than that.  If there is any meaningless legal rhetorical device more overused than “rule of law,” it is “slippery slope,” but I will say it now.  Jeff’s rant shows all the tragic signs of entering the slippery slope toward Bernard Goetz.  There are much worse things in the world than earspill, such as the analog carspill that causes physical vibration of my car (a battery?, I should ask my 1Ls), and there are much worse things than increasing deafness, which has saved many a marriage.  Long live earspill on the T!  Most of all, I laugh (mockingly, not “with” him) at the notion that Jeff seems to think the T should sound like a library (that is so Jeff), or that all the “ambient noise” he notes is somehow fatally worsened by the slightly marginal impact of tinny earspill.  Jeff is not Goetz, then, he is the earily gifted Horton, who hears The Who.

Which brings me to my point about Bernard Goetz.  Before his notorious vigilante subway stint, Goetz was once actually mugged. And then rather than watching the perp be prosecuted and brought to justice, he was forced to go through a mediation process with his mugger.  It is quite possible that Goetz was not snapped by subway crime or ‘kids today,’ but rather by a legal system that no longer wants to state right or wrong, or enforce norms, just dispute-resolve.  And let’s be sure to do it in an efficient (cheap) manner. (Stoneridge, anyone?) The Goetz example was used well to argue that law and courts have important social value, in many kinds of cases, that go way beyond dispute resolution, or even trendy alternative dispute resolution, in a classic article by Albert W. Alschuler, Mediation with a Mugger: The Shortage ofAdjudicative Services and the Need for a Two Tier Trial System in Civil Cases,99 HARV. L. REV. 1808 (1986).  I could not find it free online, so you may have to read this one in your library (or the subway).