How do we overcome the obvious—and not obvious—obstacles to achieving timeliness in the justice system? One question of method is whether we should pursue incremental or dramatic change. There is evidence for both. Many faced with the failure of dramatic programs to find acceptance have opted to pursue smaller, incremental improvements.
This debate carries on across many policy landscapes. Perhaps the most obvious concerns environmental issues. There are long-standing and successful incremental efforts such as the preservation of wetlands by Ducks Unlimited—which since 1937 has been able directly to conserve over 14 million acres and influence the conservation of some 177 million. Some of the proposals to address climate change illustrate a more revolutionary approach: the Green New Deal’s proposal to swiftly replace air travel in the United States with high speed trains is a good example.
The dichotomy of these two approaches inspired “The Wizard and the Prophet” a book by Charles Mann which explores the approaches and legacies of William Vogt and Norman Borlaug as they addressed the problems of human population and the environment. Both Borlaug and Vogt were concerned about a common problem: how we balance and negotiate human needs and the natural world’s capacities. Vogt, a pioneering ecologist, believed increasing human population would have devastating effects on the environment, and advocated population control. He is the “Prophet” of the title. His neo-Malthusian approach to the problem of environmental degradation urged fewer people and less consumption. He pursued these ends in various posts in the conservation movement and as National Director of Planned Parenthood.
Norman Borlaug, the Wizard, championed the breeding of new semi-dwarf and rust-resistant strains of wheat, and efficient agricultural methods in the developing world. The result was a huge increase in crop yields: Pakistan and India, which were among the first to adopt Borlaug’s new wheat strains, had their yields increase by 60% from 1965 to 1970, feeding millions. Borlaug was awarded the Nobel Peace Prize in 1970 for his contribution to peace through food security.
As evidenced by the Green New Deal these rival approaches of Vogt and Borlaug have not been resolved. Vogt’s fears are still unrealized, and Borlaug’s innovations saved hundreds of millions of lives, but there remain fans of both, and latter-day versions of their apocalyptic and incremental approaches to environmental issues.
Legal prophets have been predicting the irrelevance of the common law and the courts for decades, arguing that non-court systems and statutory law is eclipsing the common law. The growth of ADR systems has doubtlessly siphoned disputes out of the courts and in some ways also threatens the development of the common law by privatizing decisions. The recent development of online resolution systems raises similar concerns. Legal prophets seem evenly divided between traditionalists and revolutionaries. Traditionalists want to see the common law courts apply common law principles as part of the fabric of our civic life. Revolutionaries in the legal world defy easy categorization and truly make up a menagerie.
What is the prophetic vision for achieving timeliness? If we agree that timeliness is an inherent element of justice and that current justice systems fail to achieve timeliness in far too many cases, then a prophetic answer would be that the system must make timeliness a necessity and not an option. We argue in other blogs that the absence of timeliness not only drives injustice in measures large and small, but that it too frequently results in judicial outcomes which may undermine or be irrelevant to the parties’ when the final answer is known.
There is also the ongoing process of developing technocratic solutions: changing court rules, developing technologies and striving to improve access to justice by increasing the supply of legal services. Many changes are consistent with achieving timeliness and which should be encouraged. However, if timeliness is a linchpin for the effective delivery of justice legal reforms must be assessed in light of their impact on timeliness.
There is a case to be made that technocratic solutions should be organized in service of prophetic ideals. If timeliness must become a necessity for example, then it should be reflected in the rules and ethics by which we expect justice to be administered. Similarly, responsibility for the development of workable solutions must be entrusted to those who have the ability to achieve progress. The technical and ethical infrastructure of our pursuit of justice must align with timeliness.
In other blogs we will explore what making timeliness a necessity might require. Solutions will require uncomfortable confrontations with aspects of the system which we consider part of the weight-bearing architecture of common law justice. In discussions about this topic a sense of inevitability also often hangs in the air. Whatever solutions are developed need to also credibly speak to why they will not be only temporary.
