American Legal Realism in Dispute Resolution. Alternative Dispute Resolution as a “Realist” Project

Abstract

American Legal Realism is alive and well. As a normative (and not only descriptive) theory, it has shaped the legal world we are living in and has influenced current legal practices at a global level. This article looks at the influence Realists’ ideas (and specifically Charles Edward Clark’s ones) have had ‘unconsciously’ over the phenomenon of the privatisation of civil justice and the Alternative Dispute Resolution revolution. It is suggested that many key concepts of Pragmatism and American Legal Realism form part of today’s repertoire of Alternative Dispute Resolution supporters and that the privatisation of civil justice is to be understood as an “unintended” Realist project, in the sense that it is inspired by, and reflects, a Realist view about law, conflict-resolution and justice without openly recognizing it.