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Authors

Amy J. Cohen

Abstract

This Article proceeds in three Parts. I begin by briefly summarizing what I will refer to as separate spheres ideology-the idea that our normative understandings of the family and the market are constructed in contradistinction to one another. I then show how this conceptual distinction between the family and the market shaped the development of alternative dispute processing during two periods of time. The first period, which I introduce to frame the second, examines how dispute processing reformers-beginning during the Progressive era and continuing to the 1930s-distinguished alternative forums for family disputes from alternative forums for commercial ones. In Part II, examine how ADR scholars and practitioners in the 1970s and 1980s promoted analogous ideologies and techniques for both family and market disputes, most commonly through the procedural techniques of mediation. In this sense, I conclude, modern ADR coincides with the development of popular theories of societal self-regulation that weave together economic self-interest with more open-ended ideas of interdependence, affect, altruism, social capital, and trust. This Article thus aims to shift and broaden our debate: rather than continue to ask whether ADR undermines public governance (or the rule of law), this Article instead invites readers critically to consider the politics and potential distributional effects of contemporary private ordering regimes that aspire to integrate efficiency and relationality, individualism and altruism, economics and intimacy, the market and the family.

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