Publishing awards forces conformity pressure that distorts case-by-case justice
Evidence
“The effects of publishing domestic arbitration awards are inevitable and inevitably undesirable. The fact of publication itself creates the atmosphere of precedent. The arbitrators in each subsequent dispute are submitted to the continuous and frequently unconscious pressure to conform. A bad award - and there are ech both in the courtroom and in the arbitration tribunal - will have the effect of stimulating other bad ones; a good one, by the weight of precedent, may be applied where the subtleties of fact should urge a different award.’ … Think about this argument in relation to both types of general directive arrangements - the enacted ones, and those which are expressed only as grounds of decision and applied as precedent. Is there any reason why the second kind should be freely disregarded while the first kind (say, the provisions of the Uniform Sales Act) should be observed? — Henry M. Hart, Jr. and Albert M. Sacks, The Legal Process, 4848
Categorization
- DEEPTHINKING: The passage surfaces a genuinely deep puzzle: if published precedent harms arbitration by inducing unconscious conformity, why does the common-law court treat published precedent as its proudest tool? The question cuts to what precedent is actually for and who it serves.
- XREF: Directly relevant to the LGST thread about interpretation and institutional values — the passage forces comparison of two kinds of general directive arrangements that earlier chapters (enacted vs precedent-based) set up. — connects to: Precedent expresses a universal human need for predictability, not a common-law peculiarity — Henry M. Hart, Jr. and Albert M. Sacks, The Legal Process: Basic Problems in…, 4854; Competitive honor systems undermine impartial justice and cross-group trust. — Russell Hardin, Trust and Trustworthiness, 491
Broader Connections
- Competitive honor systems undermine impartial justice and cross-group trust.
#corroborates(0.82) — Russell Hardin, Trust and Trustworthiness, 491