Civil Litigation as Civic Participation: a Comment on Assy's Injustice in Person

Civil Litigation as Civic Participation: a Comment on Assy's Injustice in Person 1. Introduction In Injustice in Person,1 Rabeea Assy presents a compelling argument against litigant self-representation in civil (private law) litigation. What may seem initially as a counterintuitive move that could undermine procedural fairness and litigant autonomy, is shown to have strong footing in both normative theory and comparative practice; and, one might add, in the anecdotal experience of nearly anyone who has witnessed firsthand a non-represented party trying to make a sincere legal case in a process surrounded by lawyers. The bottom line of the book’s argument therefore is, to me, persuasive: there seem to be good reasons for legal systems that do not regulate party representation in civil litigation, to start doing so. This will require discarding the notion of a “right” to self-representation (or at least right-as-trump), and opting instead for some sort of a discretionary balancing rule that would require considering the interests of all stakeholders involved in the litigation—namely, the party seeking self-representation, the adverse party, and the public that sustains the judicial system at large. Assy does not provide a detailed prescription for structuring this discretionary analysis, and I look forward to reading in future work about how he sees it; I will tentatively suggest one possible element in such a framework below. Still, that the current work opens up avenues for further elaboration is but a mark of its success in stimulating our thought on this topic, as much as it attests to the fundamental power of the general argument. While the balance of considerations might support Assy’s general thesis, in this essay I would like to suggest another argument that I believe should be included in the discussion, and that would, more often than not, weigh against his position and in support of allowing self-representation even when the utilitarian analysis results in more social costs than benefits. The argument I would like to suggest derives from a competing theory of civil litigation to the one that dominates most of Assy’s discussion: we can call it a political, or a civic, theory of civil litigation. It comes in contrast with Assy’s paradigm, which I will call the service, or welfarist, theory of civil litigation. In what follows I will first present my understanding of Assy’s service paradigm, accepting it as a viable way of conceptualizing civil litigation while at the same time questioning the workability of some of its normative implications. I will then turn to a discussion of an alternative, civic–political theory of civil litigation, and attempt to show that in the context of that theory, litigation in person might have a significant, if not necessary, role to play. A. “LIP-Service:” Civil Litigation as Entitlement Assy locates his discussion in an established view of civil litigation as a service provided by the state to individual parties that have failed to resolve their legal disputes on their own and require an external arbiter to conclude the dispute for them, with the backing of a credible threat of effective enforcement. As Judith Resnik lately dubbed this conception, we can think of “courts as entitlements”2 that governments provide and subsidize, so as to ensure their orderly and universal distribution among “users,”3 similar to “public education and government benefits such as social security”.4 Thus, Assy similarly states, for example: “State involvement is a matter of placing a service of adjudication at the disposal of citizens who wish to assert their legitimate interests and enforce their legal rights.”5 Of course, “placing the service of adjudication at the disposal of citizens” is not a matter of mere public benevolence or charity: the state decides to provide a public forum for adjudication of private disputes because multiple public interests are implicated in the situation.6 Civil litigation is an opportunity for the state to assert its power and publicly exemplify the rule of law, while furthering the interest in people not resorting to violence that is detrimental to the social fabric, the interest in having legal norms (that reflect public morality) enforced correctly and consistently, and the interest in maintaining a monopoly over the legitimate use of force, that is necessary to sustain economic stability and social power structures. Often, the state is also obligated to provide a public forum for the enforcement of private law under structural or rights-based constitutional mandates.7 And still, it is the state, with its limited public resources, that provides the forum and the mechanism for public resolution of private disputes, and therefore the state can, arguably, also set the terms of litigation, including demanding that people who seek to make use of the public service do so through professional representation. Just as to receive welfare payments one must produce evidence of want, and just as to receive public education one must attend publicly instituted schools and study publicly determined curricula—so the state may legitimately demand that to make use of public adjudication one ought to be represented.8 This understanding echoes typical framings of social–economic rights doctrines in comparative constitutional discourse. In essence, Assy contends that while a rights discourse might be relevant to the overall question of the public provision of a certain service, or entitlement, once the state is shown to provide a minimally sufficient mechanism for provision, individuals should have little additional room to argue—in terms of right—for any specific procedure or mode of provision. Consider for a familiar example the South African Constitution’s framing of the right to housing as a general standard, imposing upon government the duty to “take reasonable legislative and other measures within its available resources, to achieve the progressive realisation of this right.”9 When judicial enforcement of the mandate was sought, the South African Constitutional Court ordered the government to take action, but declined to stipulate in what way it should fulfill its obligation.10 In Israel, the Supreme Court was petitioned to instruct the government to increase welfare payments to the poor, based on the (unenumerated) right to human subsistence. The Court determined such a judicially enforceable right exists, but declined to conclude that cash transfers are a necessary means for fulfilling the government’s duty under the right. The measure of government’s compliance, the Court decided, would be in the end result—are there in fact people too poor to subsist—and not in the availability of any specific welfare mechanism.11 Conceiving of civil litigation in similar terms, Assy argues that the modern welfare state is a sophisticated apparatus, which cannot succeed in its complicated matrix of missions without an elaborate set of institutions and procedures, that are certain to antagonize or alienate some users—an unavoidable and acceptable cost of a functioning system,12 as long as the end result of the provision mechanism is morally and constitutionally satisfactory. The modern welfare state is no longer restricted to soup kitchens serving food to anyone who looks poor, no questions asked; nor is its justice system based on the village elder hearing informal arguments by whomever comes forth to be heard, and deciding on the spot. Services that are more complicated are also costlier, draining limited public resources, and so procedures have to be instituted in order to screen and streamline the users and their claims. And just as it makes sense to demand that a health care recipient receives her services from an accredited professional—a physician—so it possibly does with the provision of the service of civil litigation through lawyers. I believe this is a valid position in and of itself. I have argued elsewhere in a similar vein that, assuming the litigation system manages to provide a sufficiently fair process across its forums with overlapping jurisdictions, we should not recognize litigants’ interest in choosing the forum of litigation. Other public interests, such as avoiding wasteful expenses on strategic forum shopping, countering distributive imbalances between parties, sustaining a pluralistic array of judicial results, and generating comparatively tested legal knowledge—may all justify a choice-of-forum process that disregards party preferences, such as random assignment.13 Like Assy, I maintained that the administration of justice implicates too many public values and interests—it is simply too important—to allow self-interested parties (rational or otherwise) to control its central procedural elements. Such arguments, however, well-founded as they may be as a matter of principle, cannot avoid the complicated normative work required to bring them to bear on actual questions regarding the legitimacy of institutional constraints on access to an essential public resource. In every specific context, we will still have to determine whether the restriction, condition, or imposition inflicted upon the recipient of the public service affects the core of a fair mechanism of provision—in which case it will not be justified—or is instead merely a matter of the state’s prerogative of choice of mode of provision, and thus allowed. This determination, unsurprisingly, often involves complicated and contested moral and ideological distinctions. The service-providing/entitlement-fulfilling welfare state faces such challenges recurrently, most notably when it tries to promote a certain public interest, which is more-or-less closely tied to the welfare provision mechanism, through conditioning its eligibility upon some requirement from the recipient. Price is the most familiar such condition; as most systems seem to believe, for example, that it is normally justifiable to collect a fee in return for access to court.14 But consider the following Israeli examples, to complicate matters: is it acceptable for the state to condition birth allowance (a universal cash transfer rendered upon labor) on the mother giving birth at a hospital rather than at home, ostensibly promoting public health and saving costs of emergency services?15 Should the state be allowed to reduce welfare payments to parents that do not vaccinate their children?16 Or to those whose children were convicted of terrorist acts?17 Can it deny public funds from a theater that produced a play empathetic to an imprisoned terrorist?18 While often framed as incentives or punitive measures, in the context of welfare provision they are correctly understood as another form of conditioned access to an entitlement: to make use of the public resource of birth allowance, give birth at a hospital; to be eligible to full welfare payments, vaccinate your children and ensure they do not get involved in terrorism; to have access to state support of the arts, refrain from performing certain content. Whatever one may think of each of this measures, it seems clear that all involve complex normative choices concerning the justified purpose of each of the entitlements, and, as a consequence, as to whether the conditions imposed in effect vitiate their essence or merely regulate access to them.19 The point is that this contextualized normative work cannot be avoided, with respect to each and every condition as it applies to each and every entitlement. We cannot glean the purpose of a welfare state mechanism, nor its necessary core, from its mere description; and some of the arguments will be difficult to settle. In the context of litigation, Assy argues that none of the core values embedded in civil litigation is harmed by the imposition of a duty to be represented (assuming access is secured). To him, only limited notions of party choice and autonomy should be considered as morally indispensable to a just civil process, and that may be so. But this is of course a contested normative position, the calls for further deliberation. Assy’s book, in this sense, is an invitation for the production of additional levels of theorization of the core constituent elements of a defensible system of litigation in a liberal democracy. In the following part I take him up on this invitation, by suggesting some very blurry contours of a possible conceptualization of civil litigation that might challenge Assy’s position. B. Civil Litigation as Civic Participation Consider this view of civil litigation: not as a service provided to individuals by the administrative welfare state, but rather as a forum for exercising rights and responsibilities of citizenship in a democracy. More specifically, in the administrative democratic state, in which bureaucratization and rationalization have reduced avenues for individual civic agency and for direct, unmediated interaction with state power. Litigation in courts—emphatically including civil litigation in private law disputes—can and (I argue) should be seen as a uniquely accessible opportunity in contemporary society for direct engagement with the state on matters of principle. From this perspective, litigation is unlike most of the other entitlements of the modern welfare state, because it not only “gives” citizens access to a specific public service (dispute resolution), but also facilitates the exercise of a virtuous form of citizenship in the republican ideal: deliberating rationally, openly, respectfully, and in stylized form, among adversaries, about issues of social justice and public morality, with the possibility of actually affecting the state’s normative fabric as a result. Litigation according to this account is, therefore, a genuinely political act of democratic participation—different than, for example, receiving welfare payments, acquiring public health care, or being subject to regulation. The reason that litigation is unique—if not singular: consider public education—among government institutions in its facilitative potential for civic participation lies in the institutional features that define courts as such in liberal democracies. In terms of its ethos, the judicial branch is a uniquely accessible state organ that welcomes individual petitioning and thrives on the ability of individuals to bring cases and argue the law before it. (Of course, access is not always fulfilled, but courts still concern themselves constantly and centrally with its realization, and access denied is considered a pathology to be remedied or, at least, excused.) Further, it is structured as an open, public forum in which the various elements of deliberation and decision that comprise litigation and adjudication are made available to the whole constituency to draw on for further engagement, argument, and critique.20 In its modern form, the court is spread in multiple levels and units throughout the jurisdiction, allowing for localized and specialized divergences and expressing the diversity of attitudes, ideologies, and preferences that characterize the political community.21 Democracies that seek to foster engaged, other-regarding members are in lack of such forums. Voting (and where it still exists, arguably jury service as well) is often understood as the primary occasion in which individuals in a democracy are called upon to shed their personal preferences and alliances, and assume a citizen’s outlook in order to affect the determination of questions of public value.22 But voting is a relatively rare occasion, and it is deliberately fashioned as a highly personal, non-deliberative, and secret act of political membership.23 Deliberative democracy needs forums for deliberation, and at least in its participatory vein, the deliberation of elected representatives (e.g. in parliament) or appointed officials (e.g. on court benches) is not enough: we should want to get the citizens themselves involved in the very processes of talking, arguing, and weighing matters of general concern—to engage in the exercise of public reason.24 Court processes, thanks to their unique institutional features, can be rendered as forums for facilitating this engagement.25 How does the question of representation play into the civic theory of litigation? In what follows I present the argument that, at least in certain circumstances, the civic potential of litigation might not be fully tapped of self-representation is restricted in the ways suggested by Assy. For this I proceed in making two points: first, that civil disputes in private law should also be correctly conceived as forums of civic participation; and, second, that civic participation of this sort ought to be exercised, at least sometimes, by the person itself, and cannot be fulfilled—at least not to its fullest extent—by a representative. Following is the argument on both fronts. (1) Civil litigation and the state Admittedly limiting the breadth of his book’s central argument, Assy clarifies early on that his critique of litigation-in-person is confined to civil disputes in private law among individuals; the position of the state and of corporations as litigants is not considered, be it a prosecutor in a criminal process, a respondent in an administrative or constitutional petition, or a party to a commercial dispute.26 While this choice comes with some costs to the robustness of the general project, its reasons are understandable as it enables Assy to focus the work on a single line of argumentation and delve deep into its various aspects—as the book does with impressive rigor. One of the hurdles that are ostensibly set aside by the choice to keep the state (as a litigant) out of the book is the kind of discourse I just employed, locating in litigation the virtue of citizenship. Arguably, to the extent that litigants can somehow exercise their participatory, deliberative citizenship in litigation, then this is the matter of public law litigation, where the state (via its attorneys) is “there” to argue with and against, and not of private law which resides in the realm of relationships between individual parties. I believe this “privatized” understanding of private law litigation should be rejected. True, the state is not a party to the litigations that Assy focuses on, and so his argument does not purport to intervene in cases that involve a structured power imbalance among the parties. But, as he in fact concedes in different contexts throughout the book, the state is present in all litigations through-and-through, including in ways that are pertinent to the civic qualities of litigation. Most basically, the trial is always presided over by a judge who is part of the state apparatus.27 The judge does not merely transmit to the parties the word of preexisting law, rather draws from the values and ideologies of the state, as well as from the parties’ normative input, in her processes of reasoning, interpreting, and applying the law. And every judicial decision, in trial courts as in appellate ones, necessarily enters the universe of legal utterances and affects the fabric of the law shared by the constituency as a whole: it can be cited by judges as authority or inspiration, it can be appealed and reviewed, it can incite action by other branches of government or by individuals and organization outside of government. This is true of judicial acts in private law just as it is in public law. From this perspective, arguments about the standard of care in negligence, about the proper compensation in contract breach, or about fair use of copyright, let alone about the constitutionality of a private law statute or the validity of a regulatory directive—are all events of political, and hence civic, consequence: through them members of the political community get to engage in rational debate on the public good, as well to actually affect the normative universe they inhabit. Another way to conceive of the essential role of the state in any private law litigation—and hence of the civic quality of each and every occasion of civil litigation—follows the realist understanding of private law as public law, in the sense that private law disputes, while waged between individuals in the language of right and desert, are at bottom attempts at harnessing the state’s coercive power on one’s side against the other.28 After all, those are always the stakes in litigation: will the state credibly threaten one side or the other into paying a sum of money, transferring a deed or a chattel, or acting or ceasing to in a certain way. Cast in these terms, there is no significant difference between private law litigation and criminal law proceedings, both of which come down to individuals vying for the use, or the abstention from use, of state coercive power to their advantage. Through private law litigation individual argue over the possibility and justness of state action; again the public is evident in the private, and the individual litigant becomes a citizen once more. Having briefly established the civic pertinence of all litigation, let us now ask the question of self-representation directly. (2) The demands of corporeal citizenship Even if civil litigation should be correctly understood as an exercise in civic participation, must it always be done in person? Cannot we exercise our citizenship by proxy? We do so regularly with elected politics, where we transfer our political agency to representatives that deliberate and decide on our behalf. Direct democracy no longer practically relevant, and indeed questionably attractive even in the first place, representation has become the essence of modern democratic governance. How is litigation different? I am not certain that litigation is essentially different than government by representation, and so I will not attempt to present a sweeping argument, grounded in the civic theory of litigation, in defense of Litigation-in-Person. Maybe it is morally acceptable to allow for our civic selves to be represented in litigation by experts in argumentation and deliberation. But let me just point to a line of argument that calls for concern about that possibility. True, modern democracies in effect require representation as a condition for civic membership in the processes of government: to cause a law to be passed we must petition our elected officials—we cannot just step into parliament and vote in their stead, nor take over an executive office in order to decide a regulatory matter we feel strongly about. However, at the same time, I believe we would be very wary of sending representatives to cast votes on our behalf in the ballot; and this wariness should make us pause. I suppose the simple explanation would be a concern with the agency problems that are likely to be involved in a representative acting in our behalf inside a secret ballot, where we have no control over the representativeness of her behavior. This, granted, is different than the conditions in open court, where a litigant’s representative is normally accountable to her sender, who has to right to attend court hearings, instruct her lawyer, and even fire her if need be. And still I believe we, as a society, want people to vote on their own not only in order to ascertain that their vote in fact reflects their genuine political preference. We should also want them to experience—in the most physical sense—the toll of democratic participation, even if it is limited to the simple act to showing up and marking or folding a piece of paper. In the institutions of democratic membership, we can find such other instances of what we may term the burdens of corporeal citizenship: when civic participation calls for the member’s body itself to be enlisted in the civic act. Consider the right of minority filibuster in parliament, that was traditionally conditioned upon the physical capacity of the opposition speaker to stand and argue and, by literally occupying the floor and the debate clock, to do the same to the legislative agenda.29 Quorum requirements in both elected and appointed bodies, that demand actual attendance in the decision-making chamber as a constitutive basis for authority, also locate moral gravity in physical presence.30 In Israel, a Knesset member was criminally convicted (on fraud charges) for electronically voting on behalf of his absent party-member, even though the colleague was known to support the measure, and the additional vote was not the deciding one.31 Justifications for civil disobedience also often demand from a person seeking the legitimacy of resistance to be willing to accept the physical implications of the act or omission.32 If these episodes, norms, and ideas are to be somehow sensibly connected, then it is seemingly along the notion that, contra Assy, the “procedural activity per se” might in fact be “normatively valuable in a way that justifies insistence upon personal performance or that precludes delegation to others.”33 Still, with all the civic virtue stressed in such episodes, liberal democracies normally do not obligate people who do not hold official positions to exercise corporeal citizenship; although some countries render voting mandatory, or at least encroachingly incentivized.34 Rather, we usually leave individuals the liberty to choose whether do so, and through that to determine for themselves the degree of civic agency they seek to exercise: in person or by proxy. Those going at it alone are expected to be willing to accept the costs of taking that difficult path, while—importantly—society is also asked to incur the public costs attached to the choice, for the benefit of fostering (some) citizens that might from time make take their citizenship personally, all the way down. Without arguing that all contexts and conditions of civil litigation necessarily fit the model of corporeal citizenship, I believe that a genuine civic-participatory theory of litigation would be remiss if it neglected to leave some space for individuals to explore the outer reaches of citizenship, in court, with their very body. That body is, after all, what each litigant puts at stake when approaching the court, which, as Cover reminded us, “deal[s] pain and death,”35 no less. We are left then, following Assy, with the task of devising a just and workable matrix of considerations for deciding when representation will be mandated and whether and when it should be waived. I suggest citizenship as one more element in this matrix, and am grateful to Assy for setting the stage for the discussions to come. Footnotes 1 Rabeea Assy, Injustice in Person: The Right to Self-Representation (2015). 2 Judith Resnik, Courts and Economic and Social Rights/Courts as Economic and Social Rights (2017), in The Future of Economic and Social Rights (Katharine G. Young ed., forthcoming 2018); Yale Law School, Public Law Research Paper No. 603, 4 https://ssrn.com/abstract=2983853. 3Id. at 6. 4 Judith Resnik, Constitutional Entitlements to and in Courts: Remedial Rights in an Age of Egalitarianism: the Childress Lecture, 56 St. Louis U.L.J 917, 921 (2012). 5 Assy, supra note 1, at 38–39. 6 “While a liberal state has no specific interest in the particular outcomes of private legal disputes, it may have an interest in the way such disputes are resolved. Since court adjudication is a public service, even a minimalist government may insist on keeping it efficient and ensuring its integrity and legitimacy.” Id. at 142. 7 See Resnik, supra note 2, at 4–6. 8 “The civil justice system is a public service for which the state may charge fees, just as it does for many other public services.” Assy, supra note 1, at 200. 9 Constitution of South Africa, § 26(2). 10 See Government of the Republic of South Africa v Grootboom, 2000 (11) BCLR 1169 (CC). For reviews of the episode and its significance see, e.g., Cass R. Sunstein, Social and Economic Rights – Lessons from South Africa, 11 Const. F. 123 (2000); Marie Huchzermeyer, Housing Rights in South Africa: Invasions, Evictions, the Media, and the Courts in the Cases of Grootboom, Alexandra, and Bredell, 15 Urban F. 80 (2003). 11 HCJ 366/03 Commitment to Peace and Social Justice Society v Minister of Finance [2005] IsrSC December 12, 2005, trans. available at VERSA: https://tinyurl.com/ybwrtv23. 12 “These conditions for using a service or engaging in an activity are not restrictions on autonomy, but options that are available in sophisticated societies that offer their members diverse opportunities to develop and carry out their plans.” Assy, supra note 1, at 154. 13 Ori Aronson, Forum by Coin Flip: A Random Allocation Model for Jurisdictional Overlap, 45 Seton Hall L. Rev. 63 (2015). 14 See Frank I. Michelman, The Supreme Court and Litigation Access Fees: The Right to Protect One's Rights—Part I, 1973 Duke L.J. 1153 (1973). 15 See NS (JLM) 10443-10 Leisner v National Insurance Institute [2011], Reg.Lab.Ct. July 4, 2011 (Hebrew). 16 See HCJ 7245/10 Adalah v Ministry of Social Affairs [2013] IsrSC June 4, 2013, trans. available at VERSA: https://tinyurl.com/y9j7dt8z. 17 See Penal Code (Amendment No. 120 and Temporary Measure), 2015, S.H. 12, § 3. As of the time of writing, this legislation is pending constitutional review by the Supreme Court: HCJ 3390/16 Adalah v The Knesset, IsrSC. 18 See Diaa Hadid, Play Set in Israeli Prison Imperils Arab Theater, N.Y. Times (June 13, 2015), https://tinyurl.com/y9xk2hda. 19 In its first amendment’s free speech jurisprudence, the U.S. Supreme Court has developed a convoluted doctrine on “constitutional conditions.” That its application has led to consistently contrasting outcomes over the years alludes to the unavoidable contextualized nature of the analysis it requires. See, e.g., Lloyd Hitoshi Mayer, Nonprofits, Speech, and Unconstitutional Conditions, 46 Conn. L. Rev. 1045, 1047 (2014) (“If there is any consensus with respect to the doctrine of unconstitutional conditions, it is that the doctrine is a mess both generally and in the specific constitutional contexts in which the courts have applied it.”). Israeli law is yet to produce a doctrinal framework for this topic. 20 See Judith Resnik, Courts: In and Out of Sight, Site, and Cite, 53 Vill. L. Rev. 771, 803–9 (2008). 21 See Aronson, supra note 13, at 68–71. 22 See, e.g., Jeremy Waldron, Dignity, Rights, and Responsibilities, 43 Ariz. St. L.J. 1107, 1123 (2011) (“The democratic franchise, … the right to be enrolled as an elector and to vote—these are classic political rights but they can also be viewed as responsibilities in the sense that the person who exercises them is fulfilling a function along with millions of others in running and managing the democratic community.”). 23 Presenting the argument for an open ballot, already Mill noted that voting in secret might limit a voter’s incentive “to consider the interest of the public, not his private advantage.” John Stuart Mill, Considerations on Representative Government, in On Liberty and Other Essays 203, 355 (John Gray ed., 1861 [1991]). 24 See, e.g., Bruce Ackerman & James S. Fishkin, Deliberation Day, in Debating Deliberative Democracy 7, 8 (James S. Fishkin & Peter Laslett eds., 2003) (“we must create institutions that sustain citizen engagement in a shared public dialogue”). 25 See Ori Aronson, Inferiorizing Judicial Review: Popular Constitutionalism in Trial Courts, 43 U. Mich. J.L. Reform 971, 994–1002 (2010). 26 See Assy, supra note 1, at 6 (“The discussion … proceeds against the background of disputes concerning ordinary private law matters (such as contracts, wills, torts), which involve two individuals who have no specialist legal knowledge. It excludes cases giving rise to special considerations, such as those before subject-specific tribunals; administrative, constitutional or judicial review proceedings; or proceedings involving corporate entities (whether private or state-owned).”). 27 See, e.g., Martin Shapiro, Courts: a Comparative and Political Analysis 1–8 (1986). 28 See, e.g., Morris Cohen, The Basis of Contract, 46 Harv. L. Rev. 553, 585 (1933) (“It is an error … to speak of the law of contract as if it merely allows people to do things. The absence of criminal prohibition will do that much. The law of contract plays a more positive role in social life, and this is seen when the organized force of the state is brought into play to compel the loser of a suit to pay or to do something.”). 29 See, e.g., Catherine Fisk & Erwin Chemerinsky, The Filibuster, 49 Stan. L. Rev. 181, 185–203 (1997). 30 See, e.g., U.S. Constitution art. 5 § 1 (a majority of each house of Congress shall constitute a quorum); 28 U.S.C. §1 (six justices constitute a quorum on the U.S. Supreme Court). 31 See CrimC (JLM) 4324/04 State of Israel v Hazan [2006] (Mag.Ct., April 26, 2006); HCJ 5131/03 Litzman v Knesset Speaker [2004] 59(1) IsrSC 577, trans. available at VERSA: https://tinyurl.com/yb4mvcnx. 32 See, e.g., Henry David Thoreau, On the Duty of Civil Disobedience (1849) (“[T]he state never intentionally confronts a man’s sense, intellectual or moral, but only his body, his senses. It is not armed with superior wit or honesty, but with superior physical strength. I was not born to be forced. I will breathe after my own fashion. Let us see who is the strongest.”). 33Compare Assy, supra note 1, at 5 (“A litigant who wishes to avail herself of the legal system remains free to do so through legal representation. The procedural activity per se is not normatively valuable in a way that justifies insistence upon personal performance or that precludes delegation to others.”). 34 Notably, Australia and much of Latin America. See International Institute for Democracy and Electoral Assistance, Compulsory Voting, https://tinyurl.com/y9kf8pqx. 35 Robert M. Cover, Violence and the Word, 95 Yale L. J. 1601, 1609 (1986). © The Author(s) 2018. Published by Oxford University Press and the Hebrew University of Jerusalem. All rights reserved. For Permissions, please email: journals.permissions@oup.com This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/about_us/legal/notices) http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png Jerusalem Review of Legal Studies Oxford University Press

Civil Litigation as Civic Participation: a Comment on Assy's Injustice in Person

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Abstract

1. Introduction In Injustice in Person,1 Rabeea Assy presents a compelling argument against litigant self-representation in civil (private law) litigation. What may seem initially as a counterintuitive move that could undermine procedural fairness and litigant autonomy, is shown to have strong footing in both normative theory and comparative practice; and, one might add, in the anecdotal experience of nearly anyone who has witnessed firsthand a non-represented party trying to make a sincere legal case in a process surrounded by lawyers. The bottom line of the book’s argument therefore is, to me, persuasive: there seem to be good reasons for legal systems that do not regulate party representation in civil litigation, to start doing so. This will require discarding the notion of a “right” to self-representation (or at least right-as-trump), and opting instead for some sort of a discretionary balancing rule that would require considering the interests of all stakeholders involved in the litigation—namely, the party seeking self-representation, the adverse party, and the public that sustains the judicial system at large. Assy does not provide a detailed prescription for structuring this discretionary analysis, and I look forward to reading in future work about how he sees it; I will tentatively suggest one possible element in such a framework below. Still, that the current work opens up avenues for further elaboration is but a mark of its success in stimulating our thought on this topic, as much as it attests to the fundamental power of the general argument. While the balance of considerations might support Assy’s general thesis, in this essay I would like to suggest another argument that I believe should be included in the discussion, and that would, more often than not, weigh against his position and in support of allowing self-representation even when the utilitarian analysis results in more social costs than benefits. The argument I would like to suggest derives from a competing theory of civil litigation to the one that dominates most of Assy’s discussion: we can call it a political, or a civic, theory of civil litigation. It comes in contrast with Assy’s paradigm, which I will call the service, or welfarist, theory of civil litigation. In what follows I will first present my understanding of Assy’s service paradigm, accepting it as a viable way of conceptualizing civil litigation while at the same time questioning the workability of some of its normative implications. I will then turn to a discussion of an alternative, civic–political theory of civil litigation, and attempt to show that in the context of that theory, litigation in person might have a significant, if not necessary, role to play. A. “LIP-Service:” Civil Litigation as Entitlement Assy locates his discussion in an established view of civil litigation as a service provided by the state to individual parties that have failed to resolve their legal disputes on their own and require an external arbiter to conclude the dispute for them, with the backing of a credible threat of effective enforcement. As Judith Resnik lately dubbed this conception, we can think of “courts as entitlements”2 that governments provide and subsidize, so as to ensure their orderly and universal distribution among “users,”3 similar to “public education and government benefits such as social security”.4 Thus, Assy similarly states, for example: “State involvement is a matter of placing a service of adjudication at the disposal of citizens who wish to assert their legitimate interests and enforce their legal rights.”5 Of course, “placing the service of adjudication at the disposal of citizens” is not a matter of mere public benevolence or charity: the state decides to provide a public forum for adjudication of private disputes because multiple public interests are implicated in the situation.6 Civil litigation is an opportunity for the state to assert its power and publicly exemplify the rule of law, while furthering the interest in people not resorting to violence that is detrimental to the social fabric, the interest in having legal norms (that reflect public morality) enforced correctly and consistently, and the interest in maintaining a monopoly over the legitimate use of force, that is necessary to sustain economic stability and social power structures. Often, the state is also obligated to provide a public forum for the enforcement of private law under structural or rights-based constitutional mandates.7 And still, it is the state, with its limited public resources, that provides the forum and the mechanism for public resolution of private disputes, and therefore the state can, arguably, also set the terms of litigation, including demanding that people who seek to make use of the public service do so through professional representation. Just as to receive welfare payments one must produce evidence of want, and just as to receive public education one must attend publicly instituted schools and study publicly determined curricula—so the state may legitimately demand that to make use of public adjudication one ought to be represented.8 This understanding echoes typical framings of social–economic rights doctrines in comparative constitutional discourse. In essence, Assy contends that while a rights discourse might be relevant to the overall question of the public provision of a certain service, or entitlement, once the state is shown to provide a minimally sufficient mechanism for provision, individuals should have little additional room to argue—in terms of right—for any specific procedure or mode of provision. Consider for a familiar example the South African Constitution’s framing of the right to housing as a general standard, imposing upon government the duty to “take reasonable legislative and other measures within its available resources, to achieve the progressive realisation of this right.”9 When judicial enforcement of the mandate was sought, the South African Constitutional Court ordered the government to take action, but declined to stipulate in what way it should fulfill its obligation.10 In Israel, the Supreme Court was petitioned to instruct the government to increase welfare payments to the poor, based on the (unenumerated) right to human subsistence. The Court determined such a judicially enforceable right exists, but declined to conclude that cash transfers are a necessary means for fulfilling the government’s duty under the right. The measure of government’s compliance, the Court decided, would be in the end result—are there in fact people too poor to subsist—and not in the availability of any specific welfare mechanism.11 Conceiving of civil litigation in similar terms, Assy argues that the modern welfare state is a sophisticated apparatus, which cannot succeed in its complicated matrix of missions without an elaborate set of institutions and procedures, that are certain to antagonize or alienate some users—an unavoidable and acceptable cost of a functioning system,12 as long as the end result of the provision mechanism is morally and constitutionally satisfactory. The modern welfare state is no longer restricted to soup kitchens serving food to anyone who looks poor, no questions asked; nor is its justice system based on the village elder hearing informal arguments by whomever comes forth to be heard, and deciding on the spot. Services that are more complicated are also costlier, draining limited public resources, and so procedures have to be instituted in order to screen and streamline the users and their claims. And just as it makes sense to demand that a health care recipient receives her services from an accredited professional—a physician—so it possibly does with the provision of the service of civil litigation through lawyers. I believe this is a valid position in and of itself. I have argued elsewhere in a similar vein that, assuming the litigation system manages to provide a sufficiently fair process across its forums with overlapping jurisdictions, we should not recognize litigants’ interest in choosing the forum of litigation. Other public interests, such as avoiding wasteful expenses on strategic forum shopping, countering distributive imbalances between parties, sustaining a pluralistic array of judicial results, and generating comparatively tested legal knowledge—may all justify a choice-of-forum process that disregards party preferences, such as random assignment.13 Like Assy, I maintained that the administration of justice implicates too many public values and interests—it is simply too important—to allow self-interested parties (rational or otherwise) to control its central procedural elements. Such arguments, however, well-founded as they may be as a matter of principle, cannot avoid the complicated normative work required to bring them to bear on actual questions regarding the legitimacy of institutional constraints on access to an essential public resource. In every specific context, we will still have to determine whether the restriction, condition, or imposition inflicted upon the recipient of the public service affects the core of a fair mechanism of provision—in which case it will not be justified—or is instead merely a matter of the state’s prerogative of choice of mode of provision, and thus allowed. This determination, unsurprisingly, often involves complicated and contested moral and ideological distinctions. The service-providing/entitlement-fulfilling welfare state faces such challenges recurrently, most notably when it tries to promote a certain public interest, which is more-or-less closely tied to the welfare provision mechanism, through conditioning its eligibility upon some requirement from the recipient. Price is the most familiar such condition; as most systems seem to believe, for example, that it is normally justifiable to collect a fee in return for access to court.14 But consider the following Israeli examples, to complicate matters: is it acceptable for the state to condition birth allowance (a universal cash transfer rendered upon labor) on the mother giving birth at a hospital rather than at home, ostensibly promoting public health and saving costs of emergency services?15 Should the state be allowed to reduce welfare payments to parents that do not vaccinate their children?16 Or to those whose children were convicted of terrorist acts?17 Can it deny public funds from a theater that produced a play empathetic to an imprisoned terrorist?18 While often framed as incentives or punitive measures, in the context of welfare provision they are correctly understood as another form of conditioned access to an entitlement: to make use of the public resource of birth allowance, give birth at a hospital; to be eligible to full welfare payments, vaccinate your children and ensure they do not get involved in terrorism; to have access to state support of the arts, refrain from performing certain content. Whatever one may think of each of this measures, it seems clear that all involve complex normative choices concerning the justified purpose of each of the entitlements, and, as a consequence, as to whether the conditions imposed in effect vitiate their essence or merely regulate access to them.19 The point is that this contextualized normative work cannot be avoided, with respect to each and every condition as it applies to each and every entitlement. We cannot glean the purpose of a welfare state mechanism, nor its necessary core, from its mere description; and some of the arguments will be difficult to settle. In the context of litigation, Assy argues that none of the core values embedded in civil litigation is harmed by the imposition of a duty to be represented (assuming access is secured). To him, only limited notions of party choice and autonomy should be considered as morally indispensable to a just civil process, and that may be so. But this is of course a contested normative position, the calls for further deliberation. Assy’s book, in this sense, is an invitation for the production of additional levels of theorization of the core constituent elements of a defensible system of litigation in a liberal democracy. In the following part I take him up on this invitation, by suggesting some very blurry contours of a possible conceptualization of civil litigation that might challenge Assy’s position. B. Civil Litigation as Civic Participation Consider this view of civil litigation: not as a service provided to individuals by the administrative welfare state, but rather as a forum for exercising rights and responsibilities of citizenship in a democracy. More specifically, in the administrative democratic state, in which bureaucratization and rationalization have reduced avenues for individual civic agency and for direct, unmediated interaction with state power. Litigation in courts—emphatically including civil litigation in private law disputes—can and (I argue) should be seen as a uniquely accessible opportunity in contemporary society for direct engagement with the state on matters of principle. From this perspective, litigation is unlike most of the other entitlements of the modern welfare state, because it not only “gives” citizens access to a specific public service (dispute resolution), but also facilitates the exercise of a virtuous form of citizenship in the republican ideal: deliberating rationally, openly, respectfully, and in stylized form, among adversaries, about issues of social justice and public morality, with the possibility of actually affecting the state’s normative fabric as a result. Litigation according to this account is, therefore, a genuinely political act of democratic participation—different than, for example, receiving welfare payments, acquiring public health care, or being subject to regulation. The reason that litigation is unique—if not singular: consider public education—among government institutions in its facilitative potential for civic participation lies in the institutional features that define courts as such in liberal democracies. In terms of its ethos, the judicial branch is a uniquely accessible state organ that welcomes individual petitioning and thrives on the ability of individuals to bring cases and argue the law before it. (Of course, access is not always fulfilled, but courts still concern themselves constantly and centrally with its realization, and access denied is considered a pathology to be remedied or, at least, excused.) Further, it is structured as an open, public forum in which the various elements of deliberation and decision that comprise litigation and adjudication are made available to the whole constituency to draw on for further engagement, argument, and critique.20 In its modern form, the court is spread in multiple levels and units throughout the jurisdiction, allowing for localized and specialized divergences and expressing the diversity of attitudes, ideologies, and preferences that characterize the political community.21 Democracies that seek to foster engaged, other-regarding members are in lack of such forums. Voting (and where it still exists, arguably jury service as well) is often understood as the primary occasion in which individuals in a democracy are called upon to shed their personal preferences and alliances, and assume a citizen’s outlook in order to affect the determination of questions of public value.22 But voting is a relatively rare occasion, and it is deliberately fashioned as a highly personal, non-deliberative, and secret act of political membership.23 Deliberative democracy needs forums for deliberation, and at least in its participatory vein, the deliberation of elected representatives (e.g. in parliament) or appointed officials (e.g. on court benches) is not enough: we should want to get the citizens themselves involved in the very processes of talking, arguing, and weighing matters of general concern—to engage in the exercise of public reason.24 Court processes, thanks to their unique institutional features, can be rendered as forums for facilitating this engagement.25 How does the question of representation play into the civic theory of litigation? In what follows I present the argument that, at least in certain circumstances, the civic potential of litigation might not be fully tapped of self-representation is restricted in the ways suggested by Assy. For this I proceed in making two points: first, that civil disputes in private law should also be correctly conceived as forums of civic participation; and, second, that civic participation of this sort ought to be exercised, at least sometimes, by the person itself, and cannot be fulfilled—at least not to its fullest extent—by a representative. Following is the argument on both fronts. (1) Civil litigation and the state Admittedly limiting the breadth of his book’s central argument, Assy clarifies early on that his critique of litigation-in-person is confined to civil disputes in private law among individuals; the position of the state and of corporations as litigants is not considered, be it a prosecutor in a criminal process, a respondent in an administrative or constitutional petition, or a party to a commercial dispute.26 While this choice comes with some costs to the robustness of the general project, its reasons are understandable as it enables Assy to focus the work on a single line of argumentation and delve deep into its various aspects—as the book does with impressive rigor. One of the hurdles that are ostensibly set aside by the choice to keep the state (as a litigant) out of the book is the kind of discourse I just employed, locating in litigation the virtue of citizenship. Arguably, to the extent that litigants can somehow exercise their participatory, deliberative citizenship in litigation, then this is the matter of public law litigation, where the state (via its attorneys) is “there” to argue with and against, and not of private law which resides in the realm of relationships between individual parties. I believe this “privatized” understanding of private law litigation should be rejected. True, the state is not a party to the litigations that Assy focuses on, and so his argument does not purport to intervene in cases that involve a structured power imbalance among the parties. But, as he in fact concedes in different contexts throughout the book, the state is present in all litigations through-and-through, including in ways that are pertinent to the civic qualities of litigation. Most basically, the trial is always presided over by a judge who is part of the state apparatus.27 The judge does not merely transmit to the parties the word of preexisting law, rather draws from the values and ideologies of the state, as well as from the parties’ normative input, in her processes of reasoning, interpreting, and applying the law. And every judicial decision, in trial courts as in appellate ones, necessarily enters the universe of legal utterances and affects the fabric of the law shared by the constituency as a whole: it can be cited by judges as authority or inspiration, it can be appealed and reviewed, it can incite action by other branches of government or by individuals and organization outside of government. This is true of judicial acts in private law just as it is in public law. From this perspective, arguments about the standard of care in negligence, about the proper compensation in contract breach, or about fair use of copyright, let alone about the constitutionality of a private law statute or the validity of a regulatory directive—are all events of political, and hence civic, consequence: through them members of the political community get to engage in rational debate on the public good, as well to actually affect the normative universe they inhabit. Another way to conceive of the essential role of the state in any private law litigation—and hence of the civic quality of each and every occasion of civil litigation—follows the realist understanding of private law as public law, in the sense that private law disputes, while waged between individuals in the language of right and desert, are at bottom attempts at harnessing the state’s coercive power on one’s side against the other.28 After all, those are always the stakes in litigation: will the state credibly threaten one side or the other into paying a sum of money, transferring a deed or a chattel, or acting or ceasing to in a certain way. Cast in these terms, there is no significant difference between private law litigation and criminal law proceedings, both of which come down to individuals vying for the use, or the abstention from use, of state coercive power to their advantage. Through private law litigation individual argue over the possibility and justness of state action; again the public is evident in the private, and the individual litigant becomes a citizen once more. Having briefly established the civic pertinence of all litigation, let us now ask the question of self-representation directly. (2) The demands of corporeal citizenship Even if civil litigation should be correctly understood as an exercise in civic participation, must it always be done in person? Cannot we exercise our citizenship by proxy? We do so regularly with elected politics, where we transfer our political agency to representatives that deliberate and decide on our behalf. Direct democracy no longer practically relevant, and indeed questionably attractive even in the first place, representation has become the essence of modern democratic governance. How is litigation different? I am not certain that litigation is essentially different than government by representation, and so I will not attempt to present a sweeping argument, grounded in the civic theory of litigation, in defense of Litigation-in-Person. Maybe it is morally acceptable to allow for our civic selves to be represented in litigation by experts in argumentation and deliberation. But let me just point to a line of argument that calls for concern about that possibility. True, modern democracies in effect require representation as a condition for civic membership in the processes of government: to cause a law to be passed we must petition our elected officials—we cannot just step into parliament and vote in their stead, nor take over an executive office in order to decide a regulatory matter we feel strongly about. However, at the same time, I believe we would be very wary of sending representatives to cast votes on our behalf in the ballot; and this wariness should make us pause. I suppose the simple explanation would be a concern with the agency problems that are likely to be involved in a representative acting in our behalf inside a secret ballot, where we have no control over the representativeness of her behavior. This, granted, is different than the conditions in open court, where a litigant’s representative is normally accountable to her sender, who has to right to attend court hearings, instruct her lawyer, and even fire her if need be. And still I believe we, as a society, want people to vote on their own not only in order to ascertain that their vote in fact reflects their genuine political preference. We should also want them to experience—in the most physical sense—the toll of democratic participation, even if it is limited to the simple act to showing up and marking or folding a piece of paper. In the institutions of democratic membership, we can find such other instances of what we may term the burdens of corporeal citizenship: when civic participation calls for the member’s body itself to be enlisted in the civic act. Consider the right of minority filibuster in parliament, that was traditionally conditioned upon the physical capacity of the opposition speaker to stand and argue and, by literally occupying the floor and the debate clock, to do the same to the legislative agenda.29 Quorum requirements in both elected and appointed bodies, that demand actual attendance in the decision-making chamber as a constitutive basis for authority, also locate moral gravity in physical presence.30 In Israel, a Knesset member was criminally convicted (on fraud charges) for electronically voting on behalf of his absent party-member, even though the colleague was known to support the measure, and the additional vote was not the deciding one.31 Justifications for civil disobedience also often demand from a person seeking the legitimacy of resistance to be willing to accept the physical implications of the act or omission.32 If these episodes, norms, and ideas are to be somehow sensibly connected, then it is seemingly along the notion that, contra Assy, the “procedural activity per se” might in fact be “normatively valuable in a way that justifies insistence upon personal performance or that precludes delegation to others.”33 Still, with all the civic virtue stressed in such episodes, liberal democracies normally do not obligate people who do not hold official positions to exercise corporeal citizenship; although some countries render voting mandatory, or at least encroachingly incentivized.34 Rather, we usually leave individuals the liberty to choose whether do so, and through that to determine for themselves the degree of civic agency they seek to exercise: in person or by proxy. Those going at it alone are expected to be willing to accept the costs of taking that difficult path, while—importantly—society is also asked to incur the public costs attached to the choice, for the benefit of fostering (some) citizens that might from time make take their citizenship personally, all the way down. Without arguing that all contexts and conditions of civil litigation necessarily fit the model of corporeal citizenship, I believe that a genuine civic-participatory theory of litigation would be remiss if it neglected to leave some space for individuals to explore the outer reaches of citizenship, in court, with their very body. That body is, after all, what each litigant puts at stake when approaching the court, which, as Cover reminded us, “deal[s] pain and death,”35 no less. We are left then, following Assy, with the task of devising a just and workable matrix of considerations for deciding when representation will be mandated and whether and when it should be waived. I suggest citizenship as one more element in this matrix, and am grateful to Assy for setting the stage for the discussions to come. Footnotes 1 Rabeea Assy, Injustice in Person: The Right to Self-Representation (2015). 2 Judith Resnik, Courts and Economic and Social Rights/Courts as Economic and Social Rights (2017), in The Future of Economic and Social Rights (Katharine G. Young ed., forthcoming 2018); Yale Law School, Public Law Research Paper No. 603, 4 https://ssrn.com/abstract=2983853. 3Id. at 6. 4 Judith Resnik, Constitutional Entitlements to and in Courts: Remedial Rights in an Age of Egalitarianism: the Childress Lecture, 56 St. Louis U.L.J 917, 921 (2012). 5 Assy, supra note 1, at 38–39. 6 “While a liberal state has no specific interest in the particular outcomes of private legal disputes, it may have an interest in the way such disputes are resolved. Since court adjudication is a public service, even a minimalist government may insist on keeping it efficient and ensuring its integrity and legitimacy.” Id. at 142. 7 See Resnik, supra note 2, at 4–6. 8 “The civil justice system is a public service for which the state may charge fees, just as it does for many other public services.” Assy, supra note 1, at 200. 9 Constitution of South Africa, § 26(2). 10 See Government of the Republic of South Africa v Grootboom, 2000 (11) BCLR 1169 (CC). For reviews of the episode and its significance see, e.g., Cass R. Sunstein, Social and Economic Rights – Lessons from South Africa, 11 Const. F. 123 (2000); Marie Huchzermeyer, Housing Rights in South Africa: Invasions, Evictions, the Media, and the Courts in the Cases of Grootboom, Alexandra, and Bredell, 15 Urban F. 80 (2003). 11 HCJ 366/03 Commitment to Peace and Social Justice Society v Minister of Finance [2005] IsrSC December 12, 2005, trans. available at VERSA: https://tinyurl.com/ybwrtv23. 12 “These conditions for using a service or engaging in an activity are not restrictions on autonomy, but options that are available in sophisticated societies that offer their members diverse opportunities to develop and carry out their plans.” Assy, supra note 1, at 154. 13 Ori Aronson, Forum by Coin Flip: A Random Allocation Model for Jurisdictional Overlap, 45 Seton Hall L. Rev. 63 (2015). 14 See Frank I. Michelman, The Supreme Court and Litigation Access Fees: The Right to Protect One's Rights—Part I, 1973 Duke L.J. 1153 (1973). 15 See NS (JLM) 10443-10 Leisner v National Insurance Institute [2011], Reg.Lab.Ct. July 4, 2011 (Hebrew). 16 See HCJ 7245/10 Adalah v Ministry of Social Affairs [2013] IsrSC June 4, 2013, trans. available at VERSA: https://tinyurl.com/y9j7dt8z. 17 See Penal Code (Amendment No. 120 and Temporary Measure), 2015, S.H. 12, § 3. As of the time of writing, this legislation is pending constitutional review by the Supreme Court: HCJ 3390/16 Adalah v The Knesset, IsrSC. 18 See Diaa Hadid, Play Set in Israeli Prison Imperils Arab Theater, N.Y. Times (June 13, 2015), https://tinyurl.com/y9xk2hda. 19 In its first amendment’s free speech jurisprudence, the U.S. Supreme Court has developed a convoluted doctrine on “constitutional conditions.” That its application has led to consistently contrasting outcomes over the years alludes to the unavoidable contextualized nature of the analysis it requires. See, e.g., Lloyd Hitoshi Mayer, Nonprofits, Speech, and Unconstitutional Conditions, 46 Conn. L. Rev. 1045, 1047 (2014) (“If there is any consensus with respect to the doctrine of unconstitutional conditions, it is that the doctrine is a mess both generally and in the specific constitutional contexts in which the courts have applied it.”). Israeli law is yet to produce a doctrinal framework for this topic. 20 See Judith Resnik, Courts: In and Out of Sight, Site, and Cite, 53 Vill. L. Rev. 771, 803–9 (2008). 21 See Aronson, supra note 13, at 68–71. 22 See, e.g., Jeremy Waldron, Dignity, Rights, and Responsibilities, 43 Ariz. St. L.J. 1107, 1123 (2011) (“The democratic franchise, … the right to be enrolled as an elector and to vote—these are classic political rights but they can also be viewed as responsibilities in the sense that the person who exercises them is fulfilling a function along with millions of others in running and managing the democratic community.”). 23 Presenting the argument for an open ballot, already Mill noted that voting in secret might limit a voter’s incentive “to consider the interest of the public, not his private advantage.” John Stuart Mill, Considerations on Representative Government, in On Liberty and Other Essays 203, 355 (John Gray ed., 1861 [1991]). 24 See, e.g., Bruce Ackerman & James S. Fishkin, Deliberation Day, in Debating Deliberative Democracy 7, 8 (James S. Fishkin & Peter Laslett eds., 2003) (“we must create institutions that sustain citizen engagement in a shared public dialogue”). 25 See Ori Aronson, Inferiorizing Judicial Review: Popular Constitutionalism in Trial Courts, 43 U. Mich. J.L. Reform 971, 994–1002 (2010). 26 See Assy, supra note 1, at 6 (“The discussion … proceeds against the background of disputes concerning ordinary private law matters (such as contracts, wills, torts), which involve two individuals who have no specialist legal knowledge. It excludes cases giving rise to special considerations, such as those before subject-specific tribunals; administrative, constitutional or judicial review proceedings; or proceedings involving corporate entities (whether private or state-owned).”). 27 See, e.g., Martin Shapiro, Courts: a Comparative and Political Analysis 1–8 (1986). 28 See, e.g., Morris Cohen, The Basis of Contract, 46 Harv. L. Rev. 553, 585 (1933) (“It is an error … to speak of the law of contract as if it merely allows people to do things. The absence of criminal prohibition will do that much. The law of contract plays a more positive role in social life, and this is seen when the organized force of the state is brought into play to compel the loser of a suit to pay or to do something.”). 29 See, e.g., Catherine Fisk & Erwin Chemerinsky, The Filibuster, 49 Stan. L. Rev. 181, 185–203 (1997). 30 See, e.g., U.S. Constitution art. 5 § 1 (a majority of each house of Congress shall constitute a quorum); 28 U.S.C. §1 (six justices constitute a quorum on the U.S. Supreme Court). 31 See CrimC (JLM) 4324/04 State of Israel v Hazan [2006] (Mag.Ct., April 26, 2006); HCJ 5131/03 Litzman v Knesset Speaker [2004] 59(1) IsrSC 577, trans. available at VERSA: https://tinyurl.com/yb4mvcnx. 32 See, e.g., Henry David Thoreau, On the Duty of Civil Disobedience (1849) (“[T]he state never intentionally confronts a man’s sense, intellectual or moral, but only his body, his senses. It is not armed with superior wit or honesty, but with superior physical strength. I was not born to be forced. I will breathe after my own fashion. Let us see who is the strongest.”). 33Compare Assy, supra note 1, at 5 (“A litigant who wishes to avail herself of the legal system remains free to do so through legal representation. The procedural activity per se is not normatively valuable in a way that justifies insistence upon personal performance or that precludes delegation to others.”). 34 Notably, Australia and much of Latin America. See International Institute for Democracy and Electoral Assistance, Compulsory Voting, https://tinyurl.com/y9kf8pqx. 35 Robert M. Cover, Violence and the Word, 95 Yale L. J. 1601, 1609 (1986). © The Author(s) 2018. Published by Oxford University Press and the Hebrew University of Jerusalem. All rights reserved. For Permissions, please email: journals.permissions@oup.com This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/about_us/legal/notices)

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Jerusalem Review of Legal StudiesOxford University Press

Published: Jun 2, 2018

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