Response or Comment
Until recently, one of the most consistent themes in both right and left critiques of the legal system has been the repudiation of procedural formality, that is, of specialized, rule-bound procedures. The left critique portrayed formality as facilitating the manipulation of the legal system by the privileged to the disadvantage of others. Both right and left critiques portrayed formality as expressing and fostering alienation and antagonism.
In recent years, however, attitudes toward formality on the left have become increasingly complex and ambivalent. This development may be partly a reaction to the rising prominence of a conservative rhetoric that links proposals for informalization with conservative substantive goals, such as reduction in civil rights or welfare rights enforcement. It may be partly an expression of disappointment over the results of the Neighborhood Justice experiments. And it may be partly a reflection of the studies in the two volumes of The Politics of Informal Justice, edited by Richard Abel. No one is likely to come away from these remarkable volumes with the idea that informalization per se invariably or even presumptively serves the interests of the disadvantaged. The Abel studies illustrate again and again how broader social inequalities can be reproduced and exacerbated in informal dispute resolution procedures ostensibly designed to enhance access of the disadvantaged.
In these circumstances, a few critics, including Abel and some of his collaborators, appear to be attracted to a notion diametrically opposed to the traditional presumption that informality benefits the disadvantaged. This is the notion that, at least in the general conditions of contemporary America (or contemporary advanced capitalism), informalism tends to worsen the situation of the disadvantaged. The argument is not merely that most particular instances of informalization have harmed the disadvantaged – since no one has attempted a broad enough survey to advance such a claim – it is that structural features of the legal system and society make them more susceptible to advocacy on behalf of the disadvantaged in formal rather than informal contexts.
In this comment I suggest that it is unlikely that such an argument could be sustained. I begin by examining the antiinformalist argument in the context of a striking case study from the Abel collection and by arguing that the significance of the study is far more limited than the anti-informalist argument suggests. I then suggest that there are theoretical problems with terms and concepts such as "state power" and "social control" upon that the argument against informalism depends on. And finally, I sketch an alternative account of the significance of informalism in contemporary redistributive politics.
William H. Simon,
Legal Informality and Redistributive Politics,
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/726