In turning to arbitration as a model of dispute resolution, early Americans were continuing a long history of creativity and innovation in American law. That history drew from the English common law tradition, with its longstanding commitment to upholding parties’ post-dispute arbitration agreements, and from legal theories circulating in the European, English, and Scottish Enlightenments, including the theories of John Locke, whose statutory form of arbitration was enacted by Parliament and then both adopted by and adapted to the unique needs of many of the new American states. The threads of early American law and dispute resolution include larger principles of Christian theology, broadly defined, such as the call for justice and mercy in the resolution of disputes or the importance of wisdom in judging, whether from the bench or in facilitating a mediated agreement or in issuing an arbitral award. Early American dispute resolution pulled from the multi-layered dispute resolution process outlined in the New Testament Book of Matthew, as Quaker communities encouraged disputing Friends to engage in one-on-one negotiation, then mediation with a third Friend, and then arbitration by the Quaker Meetinghouse if their dispute remained unresolved. The early American legal theorists who debated the efficacy of arbitration over litigation echoed their Enlightenment Era counterparts as they pulled from the language of Newtonian Science to conceptualize the law itself as a system, as a science, and as an exercise in experimentation.
As a scholar of early American legal history, I find this willingness to experiment one of the most inspiring characteristics of early American law. The British colonists in North America followed a long tradition of adopting the English Common Law while simultaneously adapting it to the unique circumstances of their geographical location. The law of England was not to be, in all respects, the law of Massachusetts Bay Colony, or of Virginia, or the Province of New York. As citizens in the new United States, they undertook this adoption and adaptation anew, asking which portions of the English Common Law tended toward justice and ought to be maintained in the laws of their state, and which tended toward injustice and ought to be revised or removed. They revisited not only the content of the law, but also the legal mechanisms available for resolving disputes.
Legal theorists and legislators in antebellum Massachusetts, Kentucky, and New Jersey believed arbitration to be well-suited for the sensible resolution of disputes. They upheld arbitration as they had long practiced it as colonists, under the English Common Law, and then reaffirmed and expanded its practice through their own state-level versions of the Locke statute. Their state supreme court judges upheld the awards of improperly challenged arbitrations that were conducted solely outside of court while their state legislators created a way for parties to choose in advance to have their award enforced by court order. These reformers held tightly to the principle of justice in the resolution of disputes—and their understanding that affordability, efficiency, the interests of the parties, and the wisdom of the decisionmaker all played a role to that end—while holding loosely to the means by which justice might be achieved. In short, they exhibited the very best in legal experimentation.
For lawmakers in Kentucky, where conflicting methods of granting or claiming title to land had led to a multitude of overlapping land title claims, experimentation meant first granting original jurisdiction in land title disputes to the Kentucky Court of Appeals (the state’s highest court) in order to more quickly resolve landowners’ claims and thereby foster security in land settlement. Experimentation then meant revoking that original jurisdiction after the court handed down a decision that called into question years of prior land title decisions. Alongside this revocation, the legislature passed a new arbitration statute. In so doing, the legislature sought to act both sensibly and justly, promoting an extrajudicial system of dispute resolution that would be efficient, affordable, and—especially--final for these landowners—which the Kentucky Court of Appeals had proven itself unable to be. We see the promotion of innovative and experimental extrajudicial dispute resolution processes in antebellum Massachusetts and New Jersey, as well.
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Early American legal reformers engaged in observation of other communities (past and present), hypothesized what might work in their locality, implemented the new law or legal process, and then observed the results. Like skilled scientists, they used failed experiments in law as a means of gaining additional insight, determined what they had not previously considered, used that information to create an improved hypothesis, and tried again. They held tightly to their larger convictions and principles but loosely to the means by which those convictions or principles might be realized. They were willing to admit they had been wrong, revise their thinking, and then move forward with new ideas. And in that willingness, they exhibited a firm commitment to the belief that law, like a scientific experiment, could be improved and perfected over time.
To engage in the development of American law—past or present—is to engage in a great and ongoing experiment. It is an exercise of the imagination. And one place where American law has been most imaginative is in the field of alternative dispute resolution. It is an area of law that, in its creativity and emphasis on the person as a whole, is particularly well-suited to respond to the guiding question of our constitutional democracy: how might we live well together? It is a broad question, but particular in its applications. To live well together could mean—as highlighted in the examples above—to have protection against risk of loss by fire or sea; to experience harmony in community; to have ready access to fundamentals, like water; or to be secure in your rights as you lease or own property. And when these protections or relationships or securities break down, to live well together must mean having a means of dispute resolution that is efficacious in the fullest sense of the word—it is capable of achieving its desired end. It enables us to resolve the dispute in a way that furthers—not hinders—our ability to flourish individually and in community, our ability to live well together.