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1999 L. Rev. M.S.U.-D.C.L. 215 (1999)
New Worlds, New Courts: New Zealand's Court of Arbitration in U.S. Perspective, 1892-1928

handle is hein.journals/mslr1999 and id is 225 raw text is: April 19, 1999 New Worlds, New Courts: New Zealand's Court of Arbitration in U.S. Perspective, 1892-1928 Daniel R. Ernst* Put most generally, my topic this evening is a paradox in the legal history of two liberal democracies that inherited the English common law. Both the United States and New Zealand have looked to common-law courts to set limits on the state in order to preserve the freedom of individuals and groups within civil society. That is, they affirmed the Rule of Law as famously articulated by the Oxford law don A. V. Dicey. For Dicey, a central meaning of the Rule of Law was that the actions of all public officials were subject to review, as Dicey put it, in the ordinary legal manner before the ordinary Courts of the land.' But if the common-law countries looked to courts to check the state, they also asked the courts to join in the job of regulating civil society--to be, in practice, the arm of the state which they in fact were. As the legal sociologists Terence Halliday and Lucien Karpik put it, courts have been in the structurally awkward position of being in the state but not of it.2 This evening I am going to develop the idea of the paradox of the judicial state with quite general references to the American experience. Then I will provide a concrete and comparative example in New Zealand Court of Arbitration. Finally, I will return to the United States and very briefly reinterpret a piece of the history of our labor law. My aim is to show that people in both countries seriously considered common-law judges as arbitrators of labor disputes, but ultimately decided that this mission could not be reconciled with expertise that made courts an effective check on the state. The Paradox of Judicial State Building At the outset I should note that we have often managed to overlook the paradox of asking a part of the state to put limits on the state, thanks to a set of ideas about the nature of adjudication and to the weakness of courts as political institutions. For much of the nineteenth and some of the twentieth century, many leading judges affirmed a view ofjudging that legal historians have called Legal Formalism or Classical Legal Thought. The view held that judges did not really exercise discretion--did not in any meaningful sense act-- but simply did corrective justice. That is, they restored parties to their condition before some violation of a prepolitical rights, which they identified through a process of a priori reasoning from principles that were often of great abstraction.3

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