ADR AND SOME THOUGHTS ON THE SOCIAL IN DUNCAN KENNEDY’S THIRD GLOBALIZATION OF LEGAL THOUGHT

Abstract

In this short comment, I consider how one of my primary fields of inquiry, alternative dispute resolution (ADR), maps onto Duncan Kennedy’s third globalization of legal thought. The question that motivates this comment is how Kennedy’s categories help to explain both the aspirations and limitations of legal reform movements that offer popular, bottom-up alternatives to adjudication, and what studying these movements may add to his conceptual scheme. I will suggest that, as Kennedy would predict, despite ambitions to transcend conventional legal categories, ADR in the United States exists in an academic and practice-oriented space that is circumscribed by what Kennedy calls neoformalism, on the one hand, and conflicting considerations, on the other hand. But I will also suggest that the specific ways ADR proposes to integrate and transform dominant legal ideals may offer some broader insights into changing ideas of the social in our present political moment.