Justice vs. justices

THERE WAS only a single dissenter when this state’s Supreme Court decided 6-to-Josephine Hart that arbitration represents a faster, more economical and generally more sensible alternative than fighting a case in court forever and ever, as in Charles Dickens’ fictional but all too true novel Bleak House,

in which the outcome is all too bleak for all concerned:

This scarecrow of a suit has, in course of time, become so complicated that no man alive knows what it means … Scores of persons have deliriously found themselves made parties in Jarndyce and Jarndyce without knowing how or why; … old Tom Jarndyce in despair blew his brains out … but Jarndyce and Jarndyce still drags its dreary length before the court, perennially hopeless… . We asked a gentleman by us if he knew what cause was on. He told us Jarndyce and Jarndyce … as well as he could make out, it was over. Over for the day? we asked him. No, he said, over for good … presently great bundles of paper began to be carried out … . We glanced at the papers, and seeing Jarndyce and Jarndyce everywhere, asked an official-looking person who was standing in the midst of them whether the cause was over. Yes, he said … and burst out laughing … Do [we] understand that the whole estate is found to have been absorbed in costs … And that thus the suit lapses and melts away?

Indeed, that was the case. And not just in old England but in contemporary Arkansas, for as William Faulkner once observed, “The past is never dead. It’s not even past.” As if to illustrate his point, now comes a lone justice of this state’s Supreme Court to object that arbitrating such a lawsuit—and the docket is full of matters just as complicated as Jarndyce and Jarndyce—should be left to judges like herself. To give her opinion a literary sheen, she cites Harper Lee’s novel To Kill a Mockingbird in which courts are called “the great levelers.”

Seeing no need to go into detail, Her Honor fails to mention that, rather than face punishment by the legal system, the black defendant in the novel makes a run for it and loses his life by extra-judicial means.

In this matter of Kilgore and Mullenax, these two Arkansas businessmen— Joshua Kilgore and Robert Mullenax—had sensibly reached a settlement on their own rather than trust their fate to endless court proceedings. Just as contending parties in other cases might submit their arguments and counter-arguments to a special magistrate.

But after these two gentlemen agreed that they wouldn’t compete against each other, it all went south. Let’s just say their disagreement was enough to make Jarndyce and Jarndyce seem simple. But this is the sort of tangled web that a justice like Her Honor Josephine Hart would weave in preference to having such differences arbitrated.

Darren Lee is president of an organization of professional arbitrators called the National Academy of Distinguished Neutrals, and he noted that going after arbitrators is becoming a crusade among jurists. But turning justice into a political crusade is no way to assure its fair and impartial character.

How will it all end? Darren Lee has a pretty good idea of where all this will end after all the commotion over it has abated: “Regardless, like the Internet, [the arbitration and/or mediation of legal disputes] is not going away—the ‘market’ has spoken, and the market likes mediation and arbitration.” Discussion closed, at least for now. Which may not please Her Honor Josephine Hart, but maybe she can submit her complaints about it to arbitration.