Out of Eden

Abstract

Religion can inspire. It can also distort, and this is precisely what it does for Professors McThenia and Shaffer.' It leads them to mistake the periphery for the center. In my earlier article' I tried to come to terms with a movement that seeks alternatives to litigation. Known as ADR (Alternative Dispute Resolution), this movement is headed by Chief Burger and is now sweeping the bar. It recently received the endorsement of the President of Harvard, Derek Bok, and the Advisory Committee on the Federal Rules of Civil Procedure. In 1983, the Advisory Committee managed to revise Rule 16 to strengthen the hand of the trial judge in brokering settlements, and for the last two years the Committee has been engaged in a determined campaign to amend Rule 68 to create additional pressure for settlement. The party who rejects an offer of settlement would, if the Advisory Committee has its way, stand in jeopardy of paying the attorney's fees of the other side. Professors McThenia and Shaffer now lend their voices to this movement, but in an unusual way. They add a religious dimension. They emphasize reconciliation rather than settlement, and appear to be moved by a conception of social organization that takes the insular religious community as its model: Justice is what we discover-you and I, Socrates said-when we walk together, listen together, and even love one another, in our curiosity about what justice is and where justice comes from.4 McThenia and Shaffer speak out on behalf of social mechanisms that might restore or preserve loving relationships and, not surprisingly, they find the judicial judgment a rather inept instrument for that purpose. I have no special interest in countering their plea: I am as much for love as the next person. What McThenia and Shaffer say is not wrong,